*. Associate Professor, University of Connecticut School of Law. I owe the
following people special thanks for help at various stages of this project: Lofty Becker, Patricia
L. Bellia, Bethany Berger, Phillip Blumberg, Laura Dickinson, Graeme Dinwoodie, Kate Gordon,
Robert W. Gordon, Dan Hunter, Mark Janis, Jonathan Kahn, Lisa Kloppenberg, Harold Hongju
Koh, Peter Lindseth, Sally Merry, Leonard Orland, Jeremy Paul, Richard Pomp, David G. Post,
Ellen Rigsby, Vicki Schultz, Avi Soifer, Colin Tait, David R. Tillinghast, Steven Wilf, and Carol
Weisbrod. Earlier versions of this article were presented at the Annual Meeting of the
Association for the Study of Law, Culture, and the Humanities, at the University of
Pennsylvania School of Law, at the Junior Faculty Workshop convened at Northeastern
University School of Law, and at two Faculty Workshop sessions held at the University of
Connecticut School of Law. I am grateful to participants at all of these sessions for their useful
feedback. I also acknowledge the diligent research assistance of Monica Debiak, Lynn Fountain,
Sarah Gessner, Lorene Park, Jeffrey Pease, Allison Rohrer, Marianne Sadowski, Shuyuan Tang,
and Heather Wood.
1
DRAFT--DO NOT CITE OR QUOTE WITHOUT PERMISSION
The Globalization of Jurisdiction:
Cyberspace, Nation-States, and Community
Definition
By Paul Schiff Berman*
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Ten Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. The Challenge of "Minimum Contacts" in Cyberspace . . . . 14
B. The Challenge of E-Commerce . . . . . . . . . . . . . . . . . . . . . 15
C. The Challenge of International Taxation . . . . . . . . . . . . . . . 16
D. The Challenge of Extraterritorial Regulation of Speech . . . . 18
E. The Challenge of the Dormant Commerce Clause . . . . . . . . 23
F. The Challenge of International Copyright . . . . . . . . . . . . . . 25
G. The Challenge of Domain Names as Trademarks . . . . . . . . 26
H. The Challenge of International Computer Crime . . . . . . . . . 29
I. The Challenge of International and Transnational Human Rights
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
J. The Challenge of International Trade . . . . . . . . . . . . . . . . . 36
II. Ten Responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2
A. E Pluribus Cyberspace . . . . . . . . . . . . . . . . . . . . . . . . . . 40
B. Coase in Cyberspace . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
C. A World of Online Passports . . . . . . . . . . . . . . . . . . . . . . 48
D. You Enforce My Laws, I'll Enforce Yours . . . . . . . . . . . . 51
E. Teaching the World to Sing in Perfect Harmony I: Treaties
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
F. Teaching the World to Sing in Perfect Harmony II:
Supranational Administrative Bodies . . . . . . . . . . . . . . 58
G. A Return to Lex Mercatoria . . . . . . . . . . . . . . . . . . . . . . . 62
H. The Triumph of NGOs . . . . . . . . . . . . . . . . . . . . . . . . . . 64
I. Challenge? What Challenge? . . . . . . . . . . . . . . . . . . . . . . . 66
J. Common-law Evolution . . . . . . . . . . . . . . . . . . . . . . . . . . 69
III. The Need to Consider the Social Meaning of Legal Jurisdiction . . . 77
A. Jurisdiction and the Social Construction of Space . . . . . . . . 79
B. Jurisdiction and the Assertion of Community Dominion . . . . 85
C. Jurisdiction and the Extension of Community Membership
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
IV. The Nation-State and the Social/Historical
Construction of Space, Community, and Borders . . . . . . . . . . 90
A. The Unmooring of Cultures, Peoples, and Places . . . . . . . . 91
B. The Historical Contingency of the Nation-State . . . . . . . . 100
C. The Nation-State as an Imagined Community . . . . . . . . . . 106
D. Conceptions of Subnational, Supranational, Transnational, and
Cosmopolitan Identities . . . . . . . . . . . . . . . . . . . . . . 118
1. Subnational Communities . . . . . . . . . . . . . . . . . . 119
2. Transnational Communities . . . . . . . . . . . . . . . . 121
3. Supranational Communities . . . . . . . . . . . . . . . . 126
4. Cosmopolitan Communities . . . . . . . . . . . . . . . . 127
V. Robert Cover and a Cosmopolitan Pluralist Conception of Jurisdiction130
A. Jurisdiction as Resistance to Kings . . . . . . . . . . . . . . . . . 132
B. Jurisdiction as the Articulation of Alternative Norms . . . . . 135
C. A Cosmopolitan Pluralist Conception of Legal Jurisdiction
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
"Supposing however that the Act [at issue] had said in
terms, that though a person sued in the island [of
Tobago] had never been present within the
jurisdiction, yet that it should bind him upon proof of
nailing up the summons at the Court door; how could
that be obligatory upon the subjects of other
1. Buchanan v. Rucker, 103 Eng. Rep. 546 (K.B. 1808).
2. Robert Cover, The Folktales of Justice, in NARRATIVE, VIOLENCE, AND THE
LAW: THE ESSAYS OF ROBERT COVER 173, 176 (Martha Minow et al. eds., 1993) (footnote
omitted).
3. Akhil Gupta, The Song of the Nonaligned World: Transnational Identities and the
Reinscription of Space in Late Capitalism, in CULTURE, POWER, PLACE: EXPLORATIONS IN
CRITICAL ANTHROPOLOGY 179, 193 (Akhil Gupta & James Ferguson eds., 1997).
3
countries? Can the island of Tobago pass a law to
bind the rights of the whole world? Would the world
submit to such an assumed jurisdiction?"1
"[This] is a plea to grant all collective behavior
entailing systematic understandings of our commitments
to future worlds equal claim to the word `law.' The
upshot of such a claim, of course, is to deny the nationstate
any special status for the collective behavior of its
officials or for their systematic understandings of some
special set of `governing' norms. The status of such
`officiaľ behavior and `officiaľ norms is not denied
the dignity of `law.' But it must share the dignity with
thousands of other social understandings. In each
case the question of what is law and for whom is a
question of fact about what certain communities believe
and with what commitments to those beliefs."2
"Citizenship ought to be theorized as one of the
multiple subject positions occupied by people as
members of diversely spatialized, partially overlapping,
or nonoverlapping collectivities. The structures of
feeling that constitute nationalism need to be set in the
context of other forms of imagining community, other
means of endowing significance to space in the
production of location and `home.'"3
"In this context, what we need--we, who aspire to be
academics, who aspire to work things out--is
permission to work things out freely. We need a space
where we can experiment with ideas without
condemnation reigning [sic] down around us ... [T]his
is cyberspace, where no one has the right to declare
truth is on their side; and where no one should claim
the right to condemn. This is a space where we need
the space to try out different, and even heretical,
ideals. In this space, the heroes will be lunatics... or
crazies... We need to imagine these problems
4. Lawrence Lessig, Foreword, to Symposium, Cyberspace and Privacy: A New
Legal Paradigm?, 52 STAN. L. REV. 987, 998-99 (2000).
5. See, e.g., DEIRDRE M. CURTIN, POSTNATIONAL DEMOCRACY: THE EUROPEAN
UNION IN SEARCH OF A PO LITICAL PHILOSOPHY 4 (1997) ("Just think of how global
computer-based communications cut across territorial borders, creating a new realm of human
activity and undermining the feasability--and legitimacy--of applying laws based on geographic
boundaries to this new sphere.").
6. See, e.g., ANTHONY GIDDENS, RUNAWAY WORLD: HOW GLOBALIZATION IS
RESHAPING OUR LIVES 24-37 (2000); Arjun Appadurai, Disjuncture and Difference in the
Global Cultural Economy, in MODERNITY AT LARGE: CULTURAL DIMENSIONS OF
GLOBALIZATION 27, 27-29 (1996) ("Today's world involves interactions of a new order and
intensity.... With the advent of the steamship, the automobile, the airplane, the camera, the
computer and the telephone, we have entered into an altogether new condition of
neighborliness, even with those most distant from ourselves."); MICHAEL EDWARDS, FUTURE
POSITIVE: INTERNATIONAL CO -OPERATION IN THE 21ST
CENTURY 5-6 (1999)
("Globalisation challenges the authority of nation states and international institutions to
influence events, while the scale of private flows of capital, technology, information and ideas
makes official transfers look increasingly marginal."); MICHAEL HARDT & ANTONIO NEGRI,
EMPIRE , at xi (arguing that the increasing flow of money, technology, people, and goods
across national boundaries means that "the nation-state has less and less power to regulate these
flows and impose its power over the economy" and suggesting that, as a result, "[e]ven the most
dominant nation-states should no longer be thought of as supreme and sovereign authorities,
either outside or even within their own borders").
7. See, e.g., Seyla Benhabib, Strange Multiplicities: Democracy and Identity in a
Global Era: Lecture 1, at 33 ("In the era of globalization, the integrative powers of the nationstate...are
challenged."); MA T T H E W HORSMAN & ANDREW MARSHALL, AFTER THE
NA T I O N -S TATE: CITIZENS, TRIBALISM AND THE NEW WORLD DISORDER, at ix (1994)
("The traditional nation-state, the fruit of centuries of political, social and economic evolution,
is under threat."); George J. Demko & William B. Wood, Introduction: International Relations
Through the Prism of Geography, in REORDERING THE W ORLD: GEOPOLITICAL
PERSPECTIVES ON THE TWENTY-FIRST CENTURY (George J. Demko & William B. Wood
eds., 1994) ("Once sacrosanct, the concept of a state's sovereignty--the immutability of its
international boundaries--is now under serious threat.").
4
differently, and we need to encourage people to
imagine them differently..."4
Introduction
In the past decade, the terms "cyberspace" and "globalization"
have become buzzwords of a new generation. And it is probably not
surprising that the two have entered the lexicon simultaneously. The
Internet from its beginning heralded a new world order of interconnection
and decentralization,5
while the word globalization conjured for many the
specter both of increasing trans-national and supra-national governance and
increasing mobility of persons and capital across geographical boundaries.6
Thus, both terms have reflected a perception that national borders might no
longer be as significant as they once were.7
On the other hand, national governments have been quick to
reassert themselves. For example, there was a heady moment circa 1995
when it seemed as if the rise of cyberspace might cause us to rethink the
8. David R. Johnson & David Post, Law and Borders--The Rise of Law in
Cyberspace, 48 Stan. L. Rev. 1367 (1996) [hereinafter Johnson & Post, Law and Borders]; see
also, e.g., David Post, Governing Cyberspace, 43 WAYNE L. REV. 155 (1996).
9. E.g., Vacco v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (1999)
(enforcing state and federal laws to ban foreign corporation, its Antiguan subsidiary, and their
principals, officers, and directors from operating or offering gambling over the Internet);
Humphrey v. Granite Gates Resorts, Inc. , 568 N.W. 2d 715 (1997) (asserting personal
jurisdiction over non-resident corporation and its principal for deceptive trade practices, false
advertising, and consumer fraud in connection with an Internet gambling site); Interactive
G a m b l i n g A c t , 2 0 0 1 , ( A u s t l . ) a v a i l a b l e a t
http://www.noie.gov.au/projects/consumer/gambling/banact.pdf (prohibiting online gambling
services to customers in Australia and other, designated countries).
10. E.g., Nev. Rev. Stat. Ann. § 176A. 413 (2001) (restricting ownership and use of
online chatrooms by people previously convicted of cyber-stalking); 47 U.S.C. § 254
(l)(1)(A)((ii) (2001) (requiring schools and libraries to adopt and implement policies to insure
the safety and security of minors when using chat rooms).
11. E.g., Ind. Code Ann. § 26-2-8-102 (2001) (applying consumer regulations to
online auction sites); N. C. Gen. Stat. § 66-312 (2000) (same); TGI Paris, Ordonnance de référé
du 20 nov. 2000, available at http://www.juriscom.net/txt/jurisfr/cti/tgiparis200001120.htm
(enjoining Yahoo!.com from permitting French users access to Nazi memorabilia via Yahoo!'s
auction sites). For further discussion of this case, see text accompanying notes 61-86, infra.
12. E.g., Uniform Computer Information Transactions Act §209 (1999), available
at http:// www.law.upenn.edu/bll/ulc/ucita/cita10st.doc (proposed uniform state law to govern
online contracts); Electronic Transactions Act, 1999 (Austl.) available at
http://www.law.gov.au/publications/ecommerce/ (creating a regulatory regime intended to
support and encourage business and consumer confidence in the use of electronic commerce).
13. E.g., Electronic Communications Privacy Act, 18 U.S.C. § 2701 (Supp. III 1998)
(prohibiting unauthorized access to a "facility through which an electronic communication
service is provided"); Data Protection Act, 1998, c. 29 (Eng.) available at
http://www.hmso.gov.uk/acts/acts1998/19980029.htm (requiring technical and organizational
measures against unauthorized or unlawful processing of personal data and against accidental loss
or destruction of, or damage to, personal data).
14. See e.g., Reno v. ACLU, 117 S.Ct. 2329 (1997) (striking down, on First
Amendment grounds, provisions of the Communications Decency Act, 47 U.S.C. § 223 (1994,
Supp. II), that criminalized certain content sent via online communication); ACLU v. Reno, 217
F.3d 162 (3d Cir., 2000) (striking down, on First Amendment grounds, the Child Online
Protection Act, 47 U.S.C. § 231 (1998 Supp. III), which also criminalized certain content sent
via online communication), cert. granted sub nom. Ashcroft v. American Civil Liberties Union,
121 S.Ct. 1997 (2001); Sexual Exploitation and other Abuse of Children Act, 18 U.S.C. §
2252(A) (1998 Supp. III) (prohibiting the receipt or distribution of sexually explicit photos of
minors by any means including computer); Regina v. Pecciarich, [1995] O.R.3d 748 (holding
that the distribution of child pornography by uploading photos to an electronic bulletin board
was in violation of criminal statutes).
5
relevance of national boundaries. Most famously, David Johnson and David
Post argued that cyberspace could not legitimately be governed by
territorially-based sovereigns and that the online world should create its own
legal jurisdiction (or multiple jurisdictions).8
Predictably, nation-states
pushed in the opposite direction, passing a slew of laws purporting to
regulate almost any conceivable online activity from gambling9
to chat
rooms10
to auction sites,11
and seeking to enforce territorially-based rules
regarding contractual relations,12
privacy norms,13
"indecent" content,14
and
15. E.g. Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (1998 Supp. III) (applying
federal law to newly discovered forms of computer abuse and providing civil remedies for certain
types of computer crimes); Regulation of Investigatory Powers Act, 2000, c. 23 (Eng.) (defining
criminal penalties for interception of traffic on all postal and telecommunications networks and
any action that may cause the content of a message to become known to people other than the
sender or intended recipient); see also America Online, Inc. v. LCGM, Inc., 46 F. Supp.2d 444
(E.D. Va. 1998) (holding that defendants who harvested email addresses of AOL members using
an extractor program and then used those addresses to send unauthorized bulk email advertising
their pornographic web sites were in violation of the Act).
16. See, e.g., Jerry Useem, There's Something Happening Here, FORTUNE (May 15,
2000) (describing a "new breed of economic activism [that] has appeared not only in Seattle but
also in Davos, Switzerland; the City, London; and now Washington, D.C."); Michael Hardt &
Antonio Negri, What the Protesters in Genoa Want, N.Y. TIMES (July 20, 2001), at A21
(arguing that "[t]he protests themselves have become global movements, and one of the clearest
objectives is the democratization of globalizing processes"); After Genoa; Future Role of
Globalization Protestors, The NATION, Aug. 6, 2001, at 3 (quoting French President Chirac
as saying "There is no demonstration drawing 100,000, 150,000 people without having a valid
reason").
17. See infra text accompanying notes 137-170.
6
crime,15
among others.
Yet, these assertions of national authority have raised many of the
legal conundrums regarding nation-state sovereignty, territorial borders, and
legal jurisdiction that Johnson and Post predicted. 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?
Is online activity sufficient to make one "present" in a jurisdiction for tax
purposes? Is a patchwork of national copyright laws feasible given the
ability to transfer digital information around the globe instantaneously? How
might national rules regarding the investigation and definition of crimes
complicate efforts to combat international computer crime? Should the law
of trademarks, which historically has permitted two firms to retain the same
name as long as they operated in different geographical areas, be expanded
to provide an international cause of action regarding the ownership of an
easily identifiable domain name? And, if so, should such a system be
enforced by national courts (and in which country) or by an international
body (and how should such a body be constituted)? And on and on.
In the meantime, on the globalization front, annual meetings of the
worlďs 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.16
Similar debates recur in the context of international human
rights, where, increasingly, countries are asserting extraterritorialjurisdiction
to try those accused of genocide and crimes against humanity in
international or foreign domestic courts.17
All of theseissues, questions, and conundrums, though they arise in
a variety of doctrinal areas and may involve a wide range of different legal
and policy concerns, nevertheless have at least one common element: they
all touch on the idea of legal jurisdiction, the circumstances under which a
18. In the United States, this inquiry often focuses on the issue of personal
jurisdiction (at least in the civil context) and is distinguished from subject matter jurisdiction,
which is concerned not with location, but with which type of court in a given location is
permitted to hear a case. Internationally, the issue is often framed as a question of choice of
law rather than authority to adjudicate. And indeed, some of the policy concerns underlying the
two inquiries might be different. For example, the question of jurisdiction implicates issues of
convenience to the parties in deciding a case in a given location, whereas choice-of-law addresses
the actual norms to be applied. Nevertheless, both involve the symbolic assertion of a
community's dominion over a dispute and therefore many of the same concerns about territorial
borders, community definition, and the nation-state apply to debates about choice of law.
7
juridical body can assert authority to adjudicate or apply its legal norms to
a dispute.18
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. Thus, the issue of
jurisdiction is deeply enmeshed with precisely the fixed conception of
territorial boundaries that contemporary events are challenging.
The problem, of course, is that local communities are now far more
likely to be affected by activities and entities with no local presence. Crossborder
interaction obviously is not a new phenomenon, but in an
electronically connected world the effects of any given action may
immediately be felt elsewhere with no relationship to physical geography at
all. Thus, although it is not surprising that local communities might feel the
need to assert their norms over extraterritorial activities based simply on the
local harms such activities cause, assertions of jurisdiction on this basis will
almost inevitably tend towards a system of universal or transnational
jurisdiction because so many activities will have effects far beyond their
immediate geographical boundaries. Such a system, for better or worse,
would jettison any idea that the application of legal norms over a party
depends in some way on the party having consented to be governed by
those norms.
Even more important, while courts, policy-makers, and scholars are
scrambling simply to adapt existing jurisdictional models to the new social
context in order to "solve" these tensions in particular situations, they are
doing so without giving sufficient consideration to the theoretical basis for
the exercise of legal jurisdiction in an increasingly interconnected world.
Thus, I aim to take a different approach. I believe the time is ripe for us to
take a step back and reflect on the jurisdictional principles we are seeking
to adapt. By doing so, I attempt to lay the groundwork for a theoretical
model that will allow us better to understand and evaluate the increasing
globalization of legal jurisdiction.
In order to construct such a model, we first need to remind
ourselves that conceptions about legal jurisdiction (by which I mean to
include both the jurisdiction to decide a dispute and the determination that
a jurisdiction's law will apply) are more than simply ideas about the most
efficient ways of regulating our world. Rather, jurisdiction is the locus for
debates about community definition, sovereignty, and legitimacy. In
19. Cf. Peter J. Spiro, Globalization, International Law, and the Academy, 32 N.Y.U.
J. INŤL L. & POL. 567, 568 & n.2 (2000) (noting that the term "`postnationaľ has crept into
other disciplines," but that international law scholars have been slow to pick up the term, having
"only recently caught on to `globalization.'").
20. The Peace of Westphalia ended the Thirty Years War, see Treaties of Peace
Between Sweden, France and the Holy Roman Empire (October 14, 1648), I.C.T.S. 119-356
[hereinafter Treaties]; Leo Gross, The Peace of Westphalia 1648-1948, 42 AM. J. INŤL. L. 20
(1948), and is generally thought to have ushered in the international legal order based on
individual state sovereignty. See infra note 531. The historically contingent nature of the
nation-state is discussed further at Part IVB, infra.
21. See Gupta, supra note 3, at 179 ("The nation is so deeply implicated in the
texture of everyday life and so thoroughly presupposed in academic discussions of "culture" and
"society" [and jurisdiction] that it becomes difficult to remember that it is only one, relatively
recent, historically contingent form of organizing space in the world.").
22. See, e.g., George Simmel, The Stranger, in T HE SOCIOLOGY OF GEORGE
SIMMEL 402, 402 (Kurt Wolff ed., 1950 (1908)) ("The stranger] is fixed within a particular
spatial group, or within a group whose boundaries are similar to spatial boundaries. But his
position in this group is determined, essentially, by the fact that he has not belonged to it from
the beginning, that he imports qualities into it, which do not and cannot stem from the group
itself.").
8
addition, the idea of legal jurisdiction both reflects and reinforces social
conceptions of space, distance, and identity. Nearly all of the current
frameworks for thinking about jurisdictional authority, however, take as their
starting point the assumption that nation-states defined by fixed territorial
borders remain the relevant jurisdictional entities, without any sustained
discussion of how people actually experience allegiance to community or
understand their relationship to geographical distance and territorial borders.
Moreover, by side-stepping these questions of community definition,
borders, and the experience of place, legal thinkers (in typically parochial
fashion) are ignoring a voluminous literaturein anthropology, culturalstudies,
and political philosophy concerning such issues.19
Indeed, even a cursory examination reveals that our current
territorially-based rules for jurisdiction (and conflict of laws) were
developed in an era when physical geography was more meaningful than it
is today and during a brief historical moment when the ideas of nation and
state were being joined by a hyphen to create an historically contingent
Westphalian order.20
Yet, if the ideas of geographical territory and the
nation-state are no longer treated as givens for defining community,21
an
entirely new set of questions can be asked. How are communities
appropriately defined in today's world? In what ways might we say that the
nation-state is an imagined community, and what other imaginings are
possible? How do people actually experience the idea of membership in
multiple, over-lapping communities? Should citizenship be theorized as one
of the many subject positions occupied by people as members of diverse,
sometimes non-territorial, collectivities? In what ways is our sense of place
and community membership constructed through social forces? And if
ideas such as "place", "community", "member", "nation", "citizen",
"boundary", and "stranger"22
are not natural and inevitable, but are instead
23. Cf. PAUL KAHN, THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL
SCHOLARSHIP 91 (1999) (encouraging those studying law as a cultural system to move "away
from normative inquiries into particular reforms and toward thick description of the world of
meaning that is the rule of law"); Susan Silbey & Austin Sarat, The Pull of the Policy Audience,
10 L. & POLICY 97 (1988) (arguing that sociolegal scholars would benefit from resisting the
demand for normative proposals). But see Paul Schiff Berman, The Cultural Life of Capital
Punishment: Surveying the Benefits of a Cultural Analysis of Law (reviewing AUSTIN SARAT,
W HEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITIO N ), ___
COLUM. L. REV. ___, ___ (2002, forthcoming) (arguing that "the cultural analysis of law is
both a vital field of academic knowledge in its own right and a way of shedding new light on
practical questions concerning legal rules and institutions").
24. DOREEN MASSEY, SPACE, PLACE, AND GENDER 154 (1994).
25. Of course, even if a court asserted jurisdiction over a dispute, other doctrines,
such as standing or causation, might still cause those courts to limit the scope of the relief
available.
9
constructed, imagined, and (sometimes) imposed, what does that say about
the presumed "naturalness" of our geographically-based jurisdiction and
choice of law rules?
This article will ask these questions, drawing on humanities and
social science literature that complicates many of the premises most
lawmakers and legal scholars take for granted concerning jurisdiction. This
literature insists that we recognize the constructed nature of our ideas about
boundaries and community definition as well as the historical contingency
of the nation-state. Moreover, by analyzing the social meaning of our
affiliations across space, we can think about alternative conceptions of
community that are subnational, transnational, supranational, or
cosmopolitan. Such an analysis provides a better understanding of the
world of experience on which the legal world is mapped and is therefore
essential in order to develop a richer descriptive account of what it means
for a juridical body to assert jurisdiction over a controversy.23
In addition, moving from the descriptive to the normative, I set
about the task of theorizing the idea of jurisdiction in a way that might take
account of the contested and constantly shifting process by which people
imagine communities and their membership in them. Drawing on the
insights of legal theorist Robert Cover, I offer what I will call a
cosmopolitan pluralist conception of jurisdiction.
A cosmopolitan pluralist approach would allow us to think of
community not as a geographically determined territory circumscribed by
fixed boundaries, but as "articulated moments in networks of social relations
and understandings."24
This dynamic understanding of the relationship
between the "local" community and other forms of community affiliation
(regional, national, transnational, international, cosmopolitan) would permit
us to conceptualize legal jurisdiction in terms of social interactions that are
fluid processes, not motionless demarcations, frozen in time and space. A
court in one country might therefore appropriately assert community
dominion over a legal dispute even if its territorially-based contacts with the
dispute are minimal.25
Or conversely, a country that might have certain
26. This broader conception of jurisdiction would necessarily affect choice of law as
well, but a more detailed exploration of how the ideas explored here apply to choice of law must
await further elaboration in a future project.
27. Political pluralism includes "theories that seek to organize and conceptualize
political phenomena on the basis of the plurality of groups to which individuals belong and by
which individuals seek to advance and, more importantly, to develop, their interests." AVIGAIL
I. EISENBERG, RECONSTRUCTING POLITICAL PLURALISM 2 (1995). Thus, I use the term
to refer to situations where "two or more legal systems coexist in the same social field," Sally
Engel Merry, Legal Pluralism, 22 L. & SO C' Y REV. 869, 870 (1988) (citations omitted), even
if one or both of those legal systems is not an "official," state-based system. For further
discussions of legal pluralism, see generally id., John Griffiths, What is Legal Pluralism?, 24 J.
OF LEGAL PLURALISM 1 (1986); Marc Galanter, Justice in Many Rooms: Courts, Private
Ordering, and Indigenous Law, 19 J. LEGAL PLURALISM 28 (1981); David Engel, Legal
Pluralism in an American Community: Perspectives on a Civil Trial Court, 1980 AM. BAR.
FOUND. RES. J. 425 (1980).
10
"contacts" with a dispute might nevertheless not be able to establish a tie
between a local community and a distant defendant sufficient to justify
asserting its dominion.
A more thorough interrogation of conceptions of community,
therefore, might reign in some assertions of jurisdiction over distant acts
while permitting other extraterritorial assertions of jurisdiction that are
currently unrecognized. In any event, the jurisdictional inquiry would no
longer be based on a reified counting of contacts with, effects on, or
interests of, a territorially-bounded population. Rather, courts would take
seriously the multiple definitions of community that might be available, the
symbolic significance of asserting jurisdiction over an actor, and the
normative desirability of conceptualizing the parties before the court as
members of the same legal jurisdiction.26
In addition, if the nation-state is an imagined, historically contingent
community defined by hopelessly arbitrary geographical boundaries, and if
those nation-states--because of transnational flows of information, capital,
and people--no longer define a unified community (if they ever did), then
there is no conceptual justification for conceiving of nation-states as
possessing a monopoly on the assertion of jurisdiction. Instead, any
comprehensive theory of jurisdiction must acknowledge that non-state
communities also assert various claims to jurisdictional authority and
articulate alternative norms that are often incorporated into more "official"
legal regimes. This pluralist27
understanding of jurisdiction helps us to see
that law is not merely the coercive command of a sovereign power, but a
language for imagining alternative future worlds. Moreover, various normgenerating
communities (not just the sovereign) are always contesting the
shape of such worlds.
Of course, not all assertions of jurisdiction ultimately possess the
coercive force we often associate with law. One of the obvious reasons
that nation-states have been the primary jurisdictional entities of the past
several hundred years is that those states have wielded the power to
enforce their judgments. In contrast, many jurisdictional assertions may
28. Spanish magistrate Baltasar Garzon issued an arrest order stating that Pinochet
was "the leader of an international organization created...to conceive, develop, and execute the
systematic planning of illegal detentions, kidnapings, torture, forced relocations, assassinations
and/or disappearances of numerous persons, including Argentines, Spaniards, Britons, Americans,
Chileans, and other nationalities." Anne Swardson, Pinochet Case Tries Spanish Legal
Establishment; Pinochet Case Tries Legal System, WASH. POST, Oct. 22, 1998, at A27. On
October 30, 1998 the Spanish National Court ruled unanimously that Spanish courts had
jurisdiction over the matter based both on the principle of universal jurisdiction (that crimes
against humanity can be tried anywhere at any time) and the passive personality principle of
jurisdiction (that allows courts to try cases if their nationals are victims of crime, regardless of
where the crime was committed). See Order of the Criminal Chamber of the Spanish Audiencia
Nacional Affirming Spain's Jurisdiction (Nov. 5, 1998), in THE PINOCHET PAPERS: THE CASE
OF AUGUSTO PINOCHET IN SPAIN AND BRITAIN 95, 107 (Reed Brody & Michael Ratner, eds.
2000) [hereinafter PINOCHET PAPERS]. Garzon had alleged that Spaniards living in Chile were
among those killed under Pinocheťs rule. See id.; see also infra, notes 147-148.
29. In this instance, Pinochet was physically in Great Britain. The British House of
Lords ultimately ruled that Pinochet was not entitled to head of state immunity for acts of
torture and could be extradited to Spain. See Regina v. Bartle and the Commissioner of Police
for the Metropolis and Others ex parte Pinochet, 37 I.L.M. 1302 (1998) (Eng.).
30. The British government refused to extradite, citing Pinocheťs failing health, see
Statement of Secretary of State Jack Straw in the House of Commons (Mar. 2, 2000), in
PINOCHET PAPERS, supra note 28, at 481, 482-83, and Pinochet was returned to Chile where,
after domestic proceedings, Pinochet was deemed mentally unfit to stand trial. See Pinochet
Unfit for Trial, Chilean Court Rules, N.Y. TIMES (Jul. 10, 2001), at A2.
31. See Philippe Sands, Turtles and Torturers: The Transformation of International
Law, 33 N.Y.U. J. INŤL L. & POL. 527, 536 (2001) ("In a way that was not necessarily
predictable, a national court...[has] made a connection between international law and a broader
set of values than those to which states have given express approval").
11
never have such coercive force behind them. But that merely means that
communities asserting jurisdiction must convince those with greater
coercive power to enforce their judgments. For example, when a Spanish
judge chose to assert jurisdiction over former Chilean dictator Augusto
Pinochet,28
that seizure of jurisdiction had no literal power unless the judge
could rhetorically persuade other countries to recognize the judgment.29
Although ultimately the Spanish prosecution did not proceed,30
the rhetorical
force of the assertion of jurisdiction has changed the environment for future
international human rights prosecutions.31
In a very real sense then, the
assertion of jurisdiction shaped the future world.
Thus, if a community asserts jurisdiction, it must, if it wants its
judgment enforced, convince other jurisdictions of the justice of its ruling
(and the legitimacy of its assertion of community). As a result, jurisdiction
becomes the rhetorical site for discussions of multiple overlapping and
shifting conceptions of community, and recognition of judgments becomes
the terrain on which alternative conceptions of community vie for
persuasive power and legitimacy.
My discussion proceeds in five parts. First, I describe some of the
challenges that the rise of cyberspace and globalization pose to a legal
system based on territorially based jurisdiction and fixed borders. The
challenges indicate that, in a wide variety of legal settings, the rise of online
interaction (and global inter-connectedness more broadly) has raised
32. See, e.g., Nicholas D. Kristof, At This Rate, We'll Be Global in Another Hundred
Years, N.Y. T I M E S (May 23, 1999) at sec. 4, p. 5 (suggesting that labor, goods, and capital
moved across borders at least as much in the period from 1860-1900 as in the 1990s).
12
difficult questions about the extraterritorial assertion of legal norms or
adjudicatory authority. Second, I summarize several leading theories
regarding how to adapt (if necessary) existing legal doctrine to address
these challenges. The responses include schemes that seek large changes
in contemporary legal regimes, as well as arguments that cyberspace and
globalization present no true practical problem at all, and a number of
positions in between. Although both the challenges and the responses have
been major topics in the legal literature over the past few years, I believe
that simply surveying conceptual difficulties that cut across a variety of
doctrinal areas affords us a more comprehensive view of the way in which
territorially based understandings of legal rules have become problematic.
Third, I argue that these various theories are unsatisfying because they fail
to pay sufficient attention to the social meaning of legal jurisdiction and
community definition. Fourth, I survey some of the literature from other
disciplines that complicates our understanding of the nation-state,
community definition, territorial borders, and belonging. This literature
reveals that, far from having fixed geographical boundaries, community
alliances are multiple, overlapping, often contested, and frequently operate
at a sub-, supra-, or trans-national level. Moreover, the definition of
community emerges as a politically-charged (and sometimes hegemonic)
social construction. Fifth, drawing on this literatureand starting from Cover,
I begin to construct a cosmopolitan pluralist model for understanding the
globalization of jurisdiction. In this model, jurisdictional assertions and
contests about judgment recognition are placed at the center of debates
about community definition and norm development. Finally, I suggest how
such a conception might operate (and in some cases already is operating)
in practice.
One must always be wary of claims that the environment we are
living in today is radically different from anything that has come before.
And, undoubtedly, some of the breathless quality of globalization and
cyberspace literature is unwarranted. Indeed, by some measures, the world
was more "global" and interconnected at the end of the 19th
century,32
and
we have been communicating over wires across national borders for over
a hundred years. In addition, although nation-states are historically
contingent, they are, of course, significantly embedded in historical, social,
and political contexts that inevitably continue to shape social and political
action. Thus, the idea of nation-state sovereignty is not likely to end
anytime soon (though the nature of that sovereignty certainly is shifting).
33. I am using the term "globalization" to mean both the worldwide process of
liberalizing state controls on the international movement of goods, services and capital and the
social, economic and political consequences of liberalization. See generally SASKIA SASSEN,
GLOBALIZATION AN D ITS DISCONTENTS (1999). In addition, when I speak of globalization,
I also mean the attitude about the world that tends to come into being as a result of frequent use
of the term globalization. Indeed, in a certain sense it does not really matter whether, as an
empirical matter, the world is more or less "globalized" than it used to be. More important is
the fact that people, whether governmental actors, corporations, scholars or general citizens
think and act as if the world is more interconnected and treat globalization as a real
phenomenon.
34. See David G. Post, Against "Against Cyberanarchy," unpublished manuscript at
17-18 (on file with author) ("A plot of the location of all events and transactions taking place
in cyberspace that have an effect on persons or property in [any particular location] will have
virtually no geographic structure at all.").
35. See, e.g., Alexander Aleinikoff, Sovereignty Studies in Constitutional Law: A
Comment, 17 CONST . COMM. 197, 201-02 (2000) (noting that "there is no reason to assume
that the nation-state form will be around forever" and identifying "serious challenges to nationstate
sovereignty from three directions": supra-national norms and structures (international
human rights and trade law, subnational groups "demanding (and receiving) increasing degrees
of autonomy," and "`transnationalism'--the presence within state borders of communities of
non-nationals with significant ties across borders").
13
It is not my intention, however, to prove conclusively that the twin
engines of globalization33
and online interaction are necessarily creating an
entirely new crisis that must be "solved" by revisiting the concept of legal
jurisdiction (though I don't rule out the possibility either). Nevertheless,
although it is dubious to assume that everything has changed in the past
decade it is also dubious to assume that nothing has. And, while people in
almost any given geographical location have undoubtedly always been
affected by extraterritorial activities to some degree, in the past those
effects were far more likely to be at least somewhat related to geographical
proximity than they are now.34
Even a cursory glance at a major
newspaper on most days indicates at the very least that territorially-based
sovereigns are facing challenges regulating in this new environment.35
Such periods of challenge and adaptation are also moments of
opportunity. Just as the increasing use of legal fictions in an area of law
often indicates that the area is in flux, so too the widespread
acknowledgment that new social developments challenge traditional legal
rules indicates that those rules may benefit from re-examination. Thus, my
aim in this Article is a more limited one: to lay out some of the conceptual
challenges nation-states currently face in attempting to maintain distinctive
territorially-based regulatory regimes, to enrich our descriptive
understanding of what it means in social as well as legal terms to assert
jurisdiction over an individual and activity, to consider whether territoriallybased
legal regimes fit people's experience of place, borders and
community affiliation, and to begin constructing a model that might allow the
jurisdictional inquiry to match more accurately this lived experience. At the
very least, we may emerge with a more nuanced appreciation of the social
meaning of jurisdiction. And those who argue that we need not rethink
36. Such a jurisdictional system includes both the assertion of adjudicatory authority
and the decision about what substantive norms to apply to the dispute. In this Article, I refer
to both inquiries as issues of jurisdiction writ large.
37. See International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945)
(establishing test for determining whether an assertion of personal jurisdiction comports with
the Due Process Clause of the U.S. Constitution based on whether the defendant had sufficient
contact with the relevant state "such that jurisdiction is consistent with traditional notions of
14
jurisdiction at all will be forced to articulate a coherent understanding of
community definition from which their theory arises and then test that
theory against the experience of people who supposedly belong to such
communities. Thus, if scholars wish to defend the nation-state as the only
relevant jurisdictional entity or adopt a particular test for evaluating various
assertions of jurisdiction, they must justify their normative choices; they
cannot simply assume the jurisdictional world they assert is natural or
inevitable.
I. Ten Challenges
This Part surveys some of the conceptual challenges that have
arisen in the past few years concerning the extraterritorial assertion of legal
norms or adjudicatory authority to activity that, in one way or another,
creates effects across borders. While the list of challenges is by no means
exhaustive, my goal is to suggest that, in a wide array of doctrinal areas, the
rise of online communication and global inter-connectedness has forced
courts and policy-makers to wrestle with the difficulty of mapping a
jurisdictional system based on fixed borders onto a world that resists--in a
myriad of different ways--such neat divisions.36
Moreover, many of the
examples also challenge territorially-based assumptions about nation-state
sovereignty. Indeed, the traditional understanding of national boundaries as
inviolate has been called into question by the increase of cross-border
interaction and the rise of transnational and international administrative and
judicial bodies. Thus, the precise contours of extraterritorial adjudication
and nation-state sovereignty are both in flux.
For those who follow the legal literature on Internet-related
developments, none of these scenarios (except possibly the challenge of
international human rights) is new. Indeed, many of these issues have been
hashed out by various scholars during the past several years, and many
"solutions" to the challenges have been proposed. Nevertheless, although
some (or perhaps all) of these challenges might be resolved without
rethinking the concept of jurisdiction, I believe the existence of these
challenges creates the space for such rethinking to occur. To take one
example, discussed in more detail below, it certainly is the case that U.S.
courts are capable of adapting the International Shoe minimum contacts
test37
to the online environment. And perhaps this approach is the best one
fair play and substantial justice").
38. Id. at 316 (internal quotation omitted).
39. Id. at 319.
40. The minimum contacts test, of course, establishes only the outer limit for the
exercise of personal jurisdiction. Although no state can assert jurisdiction beyond that which
the federal Constitution allows, they may choose to exercise less than the full authority granted
by the Constitution. Some states have crafted their own statutes that voluntarily restrict their
jurisdiction over out-of-state defendants further than the federal Constitution requires. In those
states, courts may exercise personal jurisdiction only if the case falls within the limits of the
state statute and jurisdiction is permitted under the federal Constitution.
15
to take. But it seems to me that, before the new adaptations become too
entrenched, we might take this moment of transition to ask the fundamental
questions that a narrow focus on adaptation never permits one to ask.
Moreover, as I will discuss later in the article, there is at least some
evidence that courts and policymakers are already embracing more flexible
understandings of jurisdiction and national boundaries, and not simply
adapting settled jurisdictional and choice of law rules. Thus, the time for
reexamination is now. The challenges discussed below may give some
sense of why.
A. The Challenge of "Minimum Contacts" in Cyberspace
The U.S. Supreme Courťs International Shoe test for determining
whether an assertion of personaljurisdiction comports with the Due Process
Clause of the U.S. Constitution asks whether the defendant has sufficient
contact with the relevant state "such that jurisdiction is consistent with
traditional notions of fair play and substantial justice."38
This "minimum
contacts" test is satisfied as long as the "quality and nature of the activity"
of the defendant within the state is sufficient "in relation to the fair and
orderly administration of the laws which it was the purpose of the due
process clause to insure."39
Although this test is obviously a matter of
United States constitutional law and is therefore not binding on courts
elsewhere, it provides a useful starting point because the problems of
extraterritorial activity will affect all territorially-based jurisdictional systems,
even those that define the scope of jurisdiction (or choice of law) somewhat
differently.
Since 1945, the minimum contacts test has provided the framework
for determining the outer limits of personal jurisdiction under the United
States Constitution.40
Nevertheless, although the tesťs flexibility is its
greatest strength, such flexibility has meant that the minimum contacts
analysis does not provide a clearly defined rule, relying instead on a highly
particularized, fact-specific inquiry. Accordingly, it is difficult to be certain
in advance how many and what sort of contacts will be enough for a state
to exercise jurisdiction under the federal Constitution. The Supreme Court
has variously looked to whether defendants have "purposely availed"
41. See Hanson v. Denckla, 357 U.S. 235, 253 (1958).
42. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
43. See Burger King v. Rudzewicz, 471 U.S. 462, 476-77 (1985).
44. Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 119 (1987)
(Brennan, J., concurring in part and concurring in the judgment). In Asahi, four justices
indicated that simply placing a product in the stream of commerce, without more, would not be
sufficient to establish jurisdiction wherever that product happened to end up. Instead, these
justices would require some sort of "additional conduct" by the defendant that would demonstrate
that the defendant had the specific "intent or purpose" to serve the market in the state
exercising jurisdiction. Id. at 112 (Opinion of O'Connor, J.). Four other justices (including
Justice Brennan) disagreed, however, arguing that simply placing a product in the stream of
commerce was sufficient. See id. at 117 (Opinion of Brennan, J.). The ninth, Justice Stevens,
found that, based on the facts of the case, jurisdiction was proper under either test and therefore
declined to choose between them. See id. at 122 (Opinion of Stevens, J.). As a result, neither
rationale achieved a majority, and the Supreme Court has not since spoken directly to the
stream-of-commerce question.
16
themselves of the state,41
whether they could "reasonably anticipate"42
that
they would be sued there, or whether the interests of the state in
adjudicating a dispute outweighed the defendanťs concerns about increased
cost, inconvenience, or potential bias.43
In addition, some members of the
Court have indicated that a state may assert personal jurisdiction even when
the only link to the forum state is that a corporation "delivers its products
into the stream of commerce with the expectation that they will be
purchased by consumers in the forum State."44
Not surprisingly, the growth of the Internet has added new wrinkles
to the minimum contacts test. After all, when I post information on a
website, it is immediately accessible throughout the world. Have I then
"purposely availed" myself of any jurisdiction where someone views that
website? Can I "reasonably anticipate" that the information posted will be
viewed elsewhere? Have I placed my site into the "stream of commerce"
and if so, does that mean I should be amenable to suit wherever the site is
available?
B. The Challenge of E-Commerce
If a consumer purchases goods online, what law should apply to the
transaction, and which jurisdiction will adjudicate any subsequent dispute?
After all, in many cases, the consumer will not know whether the website
she has just accessed is "located" on a server just down the street or on a
different continent (and indeed a single site may have elements that reside
on multiple servers in multiple locations). If a French consumer accesses
a "Swedish" website, has she somehow "entered" Sweden for purposes of
jurisdiction and choice of law?
Moreover, the possibility that the site itself might require the
consumer to agree to contractual terms that include choice of law and
forum selection clauses may not fully resolve the dilemma. Some countries
45. See, e.g., Rudder v. Microsoft Corp., 2 C.P.R. (4th) 474 (Ont. S.C.J. 1999)
(holding that to find the forum selection clause unenforceable would undermine the integrity of
any agreement entered into through the Web); Kilgallen v. Network Solutions, 99 F. Supp. 2d
125 (D. Mass. 2000) (holding that forum selection clauses are enforceable unless proven
unreasonable under the circumstances).
46. See, e.g., Thomas A. Lipinski, The Developing Legal Infrastructure and the
Globalization of Information: Constructing a Framework for Critical Choices in the New
Millennium Internet--Character, Content and Confusion, 6 RICH. J.L. & TECH 19,  25
(Winter 1999-2000), available at http://www.richmond.edu/jolt/v6i4/article2.html (criticizing
courts for disregarding the fact that such agreements are subject to an imbalance in bargaining
power at the time of contract formation); Susan D. Rector, E-Commerce Update: Clickwrap
Agreements: Are They Enforceable?, 13 CORP. COUNS. 1 (Mar. 1999) (noting that the
complete terms of click stream contracts often are not known until after the consumer makes
the purchase).
47. See, e.g., Williams v. America Online, Inc., 2001 WL 135825 (Mass. Super.
2001) (refusing to enforce forum selection clause contained in America Online's Terms of
Service agreement in part because "public policy suggests that Massachusetts consumers who
individually have damages of only a few hundred dollars should not have to pursue AOL in
Virginia.").
48. Cf., Siegelman v. Cunard White Star Ltd., 221 F.2d 189, ___ (2d Cir. 1955)
(Frank, J., dissenting) (arguing that a choice-of-law provision in a contract of adhesion should
not be honored); see also, generally, Alfred Ehrenzweig, Adhesion Contracts in the Conflict of
Laws, 53 COLUM. L. REV. 1072 (1953).
49. See Council Directive 2000/31, 2000 O.J. (L 178).
50. See Communication from the Commission on the law of non-contractual
obligations, COM (2001) 66 final (Feb. 7, 2001).
51. See John Duckers, Regulation Tide Begins to Recede, BIRMINGHAM POST &
MAIL, 2002 WL 13710809 (Feb. 15, 2002) (reporting that the European Commission has
"shelved" its Rome II negotiations, indicating that "business is making its voice heard in
Europe's corridors of power"); Paul Meller, Europe Panel is Rethinking How it Views ECommerce,
N.Y. TIME S (June 27, 2001), at W1; European Commission Changes Tack on ECommerce
Law, N.Y. Times (June 26, 2001), at ___.
17
may determine that such "click stream" agreements are enforceable45
while
others might view them as not being true bargains because the bargaining
power among the participants might be unequal.46
Or countries might
determine that consumer protection issues implicate public values that
cannot simply be contracted away by parties to a transaction.47
If so, which
jurisdiction's consumer protection law should apply?48
The European Union, in an attempt to address these challenges,
adopted a directive in early summer 2000, enshrining the "country of origin"
principle for such sales. Under the directive, the law of the country of the
merchant or service provider applies in the event of a dispute.49
Several
months later, however, the European Commission indicated that it might
adopt the so-called Rome II Regulation, which would reverse the directive
and make the laws of the consumer's country apply in cross-border ecommerce
disputes, absent contractual provisions to the contrary.50
Since
then, under heavy pressure from business interests, the EU has now backed
off the idea of enacting Rome II.51
These flip-flops demonstrate how
contentious the question of jurisdiction over e-commerce activities has
become.
52. Michael J. Graetz, Taxing International Income: Inadequate Principles,
Outdated Concepts, and Unsatisfactory Policies , 54 TAX L. REV. 261, 278; see also TERRY
NARDIN, LAW, MORALITY, AND THE RELATIONS OF STATES 69 (1983). In fact, most
modern countries have based their tax policies on traditional notions of a nation's sovereign
authority over its subjects. Stephen G. Utz, Tax Harmonization And Coordination In Europe
And America, 9 CONN. J. INŤL L. 767, 767 (1994). Early tax policy analysts assumed that the
geographically-fixed nation-state possessed inherent taxing authority, reflecting the view that
"nations were natural units and that within their boundaries national governments were
sovereign for all purposes." STEPHEN G. UTZ, TAX POLICY: AN INTRODUCTION AND
SURVEY OF THE PRINCIPAL DEBATES 56 (1993). Under this vision, nation-states continue
to "claim full taxing authority over people, property, and transactions `within' their territory."
Id. at 195.
53. Stephen J. Kobrin, Taxing Internet Transactions, 21 U. PA. J. INŤL ECON. L.
666, 671 (2000).
54. See Model Tax Convention on Income and On Capital §R(6) (OECD Committee
on Fiscal Affairs 1961).
18
C. The Challenge of International Taxation
Historically, taxation regimes have been based on geography and
have depended on the traditional nation-state structure.52
Thus, the question
of who gets to collect a tax generally boils down to questions such as:
Where did the transaction take place? Where did the income stream arise?
Where is the company located? Needless to say, these questions can be
quite difficult to resolve in the context of digital transactions. Indeed, one
commentator has stated bluntly: "The basic assumption underlying
economic governance in the modern era is that, regardless of how
international the world economy, any transaction can be located precisely
in two dimensional geographic space.... [But] [g]eography does not map on
cyberspace."53
For example, imagine a company that provides on-line data services
or that transmits wireless messages via satellite. Should the profits from
these services be taxed in any country where the business has customers?
The overwhelming majority of bi-lateral income tax agreements allow
taxation if a business maintains a "permanent establishment" (PE) in a
particular jurisdiction, but otherwise does not allow taxation of "business
profits" derived from that jurisdiction.54
In an e-commerce world, the need
to have such a permanent establishment is radically altered. A company
may maintain no particular physical presence in the country at issue. Or the
only presence may be a server located in the country, but normally that
server is owned or operated by someone else. Are the electrons passing
through the server sufficient to create a presence or "permanent
establishment" so as to justify taxation?
The Committee on Fiscal affairs of the Organization for Economic
Cooperation and Development (OECD), which administers the model
income tax convention that forms the basis of most bi-lateral agreements,
recently has attempted to "clarify" the definition of what constitutes a
55. OECD Progresses towards Achieving an International Consensus on the Tax
Treatment of E-commerce, OECD News Release (Feb. 12, 2001); see also Clarification on the
Application of the Permanent Establishment Definition in E-Commerce: Changes to the
Commentary on the Model Tax Convention on Article V, OECD Report 3 (Dec. 22, 2000),
available at http://www.oecd.org/daf/fa/e_com/ec_1_PE_Eng.pdf. Similarly, language on
taxation in the Restatement (Third) of Foreign Relations Law requires that corporations have
a "physical nexus" with a jurisdiction before taxation is permitted. See RESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW §412 (1987).
56. Even within the United States, the issue of physical nexus is controversial. For
example, California's State Board of Equalization recently issued an opinion asserting that
purchases made through Borders.com can be charged state sales tax despite the fact that
Borders.com has no property or employees in California. See In the Matter of the Peťn for
Redetermination under the Sales and Use Tax Law of Borders Online, Inc., California State
Board of Equalization (Mem. Op. SC OHA 97-638364-56270) (Sep. 26, 2001). The state based
its opinion on the fact that Borders Books stores (a separate corporation that does have a
physical presence in California) accepts returns of books purchased online at Borders.com, thus
establishing the requisite "nexus" between the two. See id. While it is beyond the scope of this
article to debate whether this particular determination is justified, the tenuous nature of the
nexus inquiry is clear.
57. Kobrin, supra note 53, at 670.
19
"permanent establishment":
The clarification states that a web site cannot, in itself,
constitute a PE; that a web site hosting arrangement
typically does not result in a PE for the enterprise that
carries on business through that web site; that an Internet
service provider normally will not constitute a dependent
agent of another enterprise so as to constitute a PE for that
enterprise and that while a place where computer
equipment, such as a server, is located may in certain
circumstances constitute a permanent establishment, this
requires that the functions performed at that place be
significant as well as an essential or core part of the
business activity of the enterprise.55
While this clarification may sound reasonable, it poses a major problem for
developing countries that rely on tax revenue from foreign investment
because corporations can now more easily avoid local taxation by
maintaining only an "e-presence" in a given country.56
Stephen J. Kobrin, Director of the Wharton Schooľs Institute of
Management and International Studies, recently offered a similar sort of
example.57
Assume a software programmer in India is working in real time
to upgrade a bank's computer system in New York, using the bank's
servers, which are in New Jersey, so that the bank's accounting office,
located in Ireland, can function more efficiently. Certainly an economically
valuable service is being rendered, but where does the taxable transaction
take place?
Kobrin argues that in discussions of Internet taxation issues such as
this one, four assumptions are generally at work. First, taxation should be
economically neutral--that is, it should not influence the location or form of
58. See id. at 672.
59. Id.
60. See id.; see also Stephen G. Utz, Tax Harmonization And Coordination In
Europe And America, 9 CONN. J. INŤL L. 767, 767-68 (1994).
61. See TGI Paris, Ordonnance de référé du 22 mai 2000,
http://www.juriscom.net/tzt/jurisfr/cti/tgiparis20000522.htm. An example of the type of
auction page at issue can be found at http://www.legalis.net/jnet/illustration/yahoo_auctions.htm.
62. See Article R. 645-1 du Code Pénal.
20
economic activity. Second, a transactions that are either doubly or triply
taxed, or not taxed at all, should be avoided. Third, there should be an
equitable distribution of tax revenue. Fourth, fiscal sovereignty based on
geographically defined nation-states should be maintained.58
As the question of permanent establishment indicates, satisfying all
four of these principles simultaneously poses a formidable challenge.
Indeed, given the non-geographic nature of digital transactions, "it may be
impossible to resolve `jurisdictionaľ issues, distribute revenue, or even
collect sufficient revenues to sustain governmental activities while
maintaining the practice or principle of mutually exclusive
jurisdiction--political and economic control exercised through control over
geography."59
According to Kobrin, an efficient and just tax system may
ultimately require a far greater degree of international cooperation and
redistribution than we have seen in global tax policy thus far.60
D. The Challenge of Extraterritorial Regulation of Speech
Cyberspace creates the possibility (and perhaps even the likelihood)
that content posted on-line by a person in one physical location will violate
the law in some other physical location. In such circumstances there is an
inevitable problem of extraterritoriality. Will the person who posts the
content be required to conform her activities to the norms of the most
restrictive community of readers? Or, alternatively, will the community of
readers, which has adopted a norm regarding Internet content, be subjected
to the proscribed material regardless of its wishes? The answers to these
questions depends in part on whether the community of readers asserts the
jurisdictional authority to impose its norms on the foreign content provider.
Recently, a French court addressed this jurisdictional issue and
claimed the power to regulate the content of an American website
accessible in France. On May 22, 2000, the Tribunal de Grande Instance
de Paris issued a preliminary injunction against Yahoo.com, ordering the site
to take all possible measures to dissuade and prevent the access in France
of Yahoo! auction sites that sell Nazi memorabilia or other items that are
sympathetic to Nazism or constitute holocaust denial.61
Undisputedly,
selling such merchandise in France would violate French law,62
and
63. See TGI Paris, Ordonnance de référé du 20 nov. 2000,
http://www.juriscom.net/txt/jurisfr/cti/tgiparis200001120.htm.
64. See, e.g., Carl S. Kaplan, Experts See Online Speech Case as Bellwether, N.Y.
TIMES (Jan. 5, 2001) (quoting Barry Steinhardt, associate director of the American Civil
Liberties Union, warning that if "litigants and governments in other countries...go after
American service provider...we could easily wind up with a lowest common denominator
standard for protected speech on the Net.").
65. As Greg Wrenn, associate general counsel for Yahoo!'s international division put
it, "We are not going to acquiesce in the notion that foreign countries have unlimited
jurisdiction to regulate the content of U.S.-based sites." See id.
66. See Mcquarie Bank Ltd. v. Berg, [1999] NSWSC 625 (New South Wales Supreme
Ct., June 2, 1999).
67. Id. at  12.
21
Yahoo.fr, Yahoo!'s French subsidiary, complied with requests that access
to such sites be blocked.63
What made this action noteworthy was the fact
that the suit was brought not only against Yahoo.fr, but against Yahoo.com,
an American corporation, and the fact that the court sought to enjoin access
to non-French websites stored on Yahoo!'s U.S.-based servers.
Of course, one can easily see why the court and the complainants
in this action would have taken this additional step. Shutting down access
to web pages on Yahoo.fr does no good at all if French citizens can, with
the click of a mouse, simply go to Yahoo.com and access those same
pages. On the other hand, Yahoo! argued that the French assertion of
jurisdiction was impermissibly extraterritorial in scope. According to Yahoo,
in order to comply with the injunction it would need to remove the pages
from its servers altogether (not just for French people) thereby denying such
material to non-French citizens, many of whom have the right to access the
materials under the laws of their nations. Most importantly, Yahoo! argued
that such extraterritorial censoring of American web content would run
afoul of the First Amendment of the U.S. Constitution. Thus, Yahoo! and
others64
contended that the French assertion of jurisdiction was an
impermissible attempt by France to impose global rules for Internet
expression.65
Interestingly, an Australian case decided the previous year had
adopted this same logic in refusing to enjoin material posted on the Internet
by a person in the United States that was defamatory under Australian
law.66
According to the court, "[o]nce published on the Internet material
can be received anywhere, and it does not lie within the competence of the
publisher to restrict the reach of publication."67
The court went on to
explain:
The difficulties are obvious. An injunction to restrain
defamation in NSW [New South Wales] is designed to
ensure compliance with the laws of NSW, and to protect
the rights of plaintiffs, as those rights are defined by the
law of NSW. Such an injunction is not designed to
superimpose the law of NSW relating to defamation on
every other state, territory and country of the world. Yet
68. Id. at  14.
69. But see Gutnick v. Dow Jones & Co., Inc. [2001] VSC 305 (Supreme Ct. of
Victoria, Aug. 28, 2001) (asserting jurisdiction of American publisher for publishing on its
website an article allegedly defaming an Australian citizen).
70. See Tribunal de Grande Instance de Paris, Ordonnance de référé (Aug. 11, 2000),
a v a i l a b l e a t
http://www.legalis.net/cgi-iddn/french/affiche-jnet.cgi?droite=decisions/responsabilite/ord_tgi-
paris_110800.htm.
71. One of the three members, Vint Cerf, objected to the part of the experts' report
recommending that Yahoo! be forced to ask users their location upon accessing the site. See
T G I P a r i s , O r d o n n a n c e d e r é f é r é d u 2 0 n o v . 2 0 0 0 ,
http://www.juriscom.net/txt/jurisfr/cti/tgiparis200001120.htm. According to Cerf, such a
requirement would be both ineffectual (because users could lie and because Yahoo! could not
force sites accessed through Yahoo! to ask about location), and an invasion of privacy. See id.
In addition, Cerf argued that any order should not extend to French citizens who are not in
French territory at the time of their access to the Internet because the courťs jurisdiction as to
those individuals is unclear. See id.
Although a second member of the expert panel, Ben Laurie, did not dissent from the
recommendation, he subsequently posted to the Web an open letter, titled "An Experťs
Apology." See Ben Laurie, An Experťs Apology (Nov. 21, 2000), available at
http://www.apache-ssl.org/apology.html of apology. In the letter, Laurie explained that, though
the panel had attempted to answer the narrow question posed by the court (to what extent was
it technically possible for Yahoo! to comply with the courťs order), the expert report did not
necessarily reflect his policy opinion on the question. Laurie also argued that any geographical
filtering would be "inaccurate, ineffective, and trivially avoidable" and would impose a
tremendous burden on services such as Yahoo!, which would be required "to maintain a huge
matrix of pages versus jurisdictions to see who can and can't see what." Id.
72. See Tribunal de Grande Instance de Paris, Document de travail sur le rapport
ďexpertise (Nov. 6, 2000), UEJF et Licra c/ Yahoo! Inc. et Yahoo! France,
http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001106-rp.htm.
22
that would be the effect of an order restraining publication
on the Internet. It is not to be assumed that the law of
defamation in other countries is coextensive with that of
NSW, and indeed, one knows that it is not. It may very
well be that, according to the law of the Bahamas,
Tashakistan, or Mongolia, the defendant has an unfettered
right to publish the material. To make an order interfering
with such a right would exceed the proper limits of the use
of the injunctive power of this court.68
Thus, the court adopted precisely the type of argument Yahoo! made before
the French investigating judge and declined to make a ruling that it saw as
unavoidably extraterritorial in its scope.69
The French judge took a different tack, however, and decided to
investigate the empirical basis for Yahoo!'s position. Thus, the court
engaged a panel of three technical experts to determine whether Yahoo!
could, under existing technology, identify and filter out French users from
the auction sites in question, while maintaining access to those sites for
other users.70
The panel, though partially divided,71
ultimately concluded
that, for approximately 70 percent of the French users of Yahoo.com,
identifying the location of the user would be feasible.72
Armed with that
73. See TGI Paris, Ordonnance de référé du 20 nov. 2000,
http://www.juriscom.net/txt/jurisfr/cti/tgiparis200001120.htm.
74. See, e.g., French Auschwitz Group Sues Yahoo, REUTERS (Jan. 22, 2001),
available at http://www.zdnet.com/zdnn/stories/news/0,4586,2677090,00.html?chkpt=zdnnstop.
75. See Yahoo! Enhances Commerce Sites for Higher Quality Online Experience,
Yahoo! press release (Jan. 2, 2001); see also Troy Wolverton & Jeff Pelline, Yahoo! to Charge
Auction Fees, Ban Hate Materials, CNET NE W S.COM (Jan. 2, 2001), available at
http://news.cnet.com/news/0-1007-200-4352889.html.
76. See, e.g., Center for Democracy and Technology Policy Post, Vol. 6, No. 20,
Nov. 21, 2000) (discussing the dangerous precedent set for countries seeking to restrict free
expression outside their borders); Borderless Net, RIP?, THE INDUSTRY STANDARD, (Nov. 21,
2000), available at http://thestandard.com/article/display/0,1151,20331,00.html (criticizing the
French courťs ruling on the ground that it imposed international censorship on the World Wide
Web).
77. Buchanan v. Rucker, 103 Eng. Rep. 546, 547 (K.B. 1808).
78. In re Moshe D. (Court of Cassation, Italy, Jan. 10, 2001), English translation
available at http://www.cdt.org/speech/international/001227italiandecision.pdf. The case was
brought by a Jewish man who said he was defamed by a number of Web sites that claimed he had
kidnaped his two daughters, was holding them in the city of Genoa and was raising them in
defiance of Jewish law. In fact, the man had been granted custody of the girls after his wife left
him, went to Israel, and married an ultra-orthodox rabbi. She had taken the girls herself and was
raising them as fundamentalists. See id.; see also Italy: Foreign `Net Sites Can Be Closed, UPI,
(Jan. 10, 2001) (reporting decision and noting that "[i]t was not immediately clear how [an
order to shut down a foreign web site] could be implemented or enforced").
79. In re Moshe D. (Court of Cassation, Italy, Jan. 10, 2001), English translation
available at http://www.cdt.org/speech/international/001227italiandecision.pdf.
23
information, the court then re-issued its injunction.73
Meanwhile, a group of
Auschwitz survivors initiated a separate action in France against Yahoo!
CEO Timothy Koogle because of the availability of Nazi-related goods on
the site.74
Rather than filter out French users, Yahoo! decided to remove the
auction sites from its servers altogether. Although Yahoo! claimed that its
decision was "voluntary" and unrelated to the French court ruling,75
civil
libertarians viewed Yahoo!'s capitulation as evidence that the French court
had successfully engaged in extraterritorial censorship.76
Indeed, on its
face, the French ruling looked like the classic 1870 case in which Lord
Ellenborough ruled that a default judgment against a British citizen issued
in Tobago could not stand and asked rhetorically, "Can the island of Tobago
pass a law to bind the rights of the whole world?"77
Although in conflict with the Australian defamation case, the
French judgment is not anomalous. Shortly after the French court ruling,
Italy's highest court, in an appeal of an online defamation case, ruled (in
contrast to the Australian decision) that Italian courts can assert jurisdiction
over foreign-based websites and shut them down if they do not abide by
Italian law.78
The court determined, as in the Yahoo! case, that Italian
courts have jurisdiction both when an act or omission has actually been
committed on Italian territory and when simply the effects or consequences
of an act are felt in Italy.79
Likewise, Germany's second-highest court
ruled that an Australian website owner--whose website questioning the
80. See Australian Faces Trial for Holocaust Denial, Reuters (Dec. 14, 2000),
available at http://www.zdnet.com.au/news/dailynews/story/0,2000020833,20107617,00.htm:
In a judgement with possible implications for regulation of the global
computer network, the Federal Supreme Court in Germany ruled that the
former school teacher could be charged with inciting racial hatred under
German law because the offending material, which denied the deaths of
millions of Jews during the Nazi era, could be accessed by German Internet
users.
81. Ned Stafford, German Official Seeks Help to Shut U.S.-Based Hate Sites ,
N E W S B Y T E S ( A u g . 6 , 2 0 0 1 ) , a t h t t p : / / w w w . n e w s b y t e s . c o m / c g i bin/u...lient.id=newsbytes&story.id=168726,
visited Aug. 7, 2001.
82. See Gutnick v. Dow Jones, supra note 69.
83. See Citron v. Zündel, Canadian Hum. Rts. Comm (Jan. 18, 2002), available at
http://www.chrt-tcdp.gc.ca/decisions/docs/citron-e.htm; see also Peter Cameron, Hate Web Sites
Have "No Place in Canadian Society": Commission, LONDON FREE PRESS, Jan. 19, 2002, at
B5 (noting that Zündel is " a former Toronto resident now believed to be living in Tennessee").
84. Citron, supra note 83, at 57; see also Cameron, supra note 83 (quoting a
Commission spokesperson acknowledging that " [w]e have no experience with enforcing
compliance in cases involving the Internet").
85. Yahoo! Inc. v. La Ligue Contre Le Racisme et ĽAntisemitisme, 169 F.Supp. 2d
1181 (N.D. Ca. 2001).
86. Similar issues of regulatory "spillover" from one jurisdiction to another have
been raised in the United States in the context of the so-called "dormant" Commerce Clause.
See infra, text accompanying notes 87-101.
24
Holocaust is illegal in Germany but not in Australia--could be jailed for
violating German speech laws.80
Germany's interior minister subsequently
announced that he was examining "the possibilities of using [German] civil
laws to sue the creators of right-wing Web sites based in the USA that have
an effect in Germany."81
And, even in Australia, a recent ruling has been
issued that contradicts the earlier one.82
Most recently, the Canadian Human Rights Commission ordered
Ernst Zündel, a former Canadian resident now living in the United States,
to remove anti-Semitic hate speech from his California-based Internet site.83
The Commission's order recognized that it might have difficulty enforcing
its order in part because Zündel was not in Canada, but determined that
there would be "a significant symbolic value in the public denunciation" of
Zündeľs actions and a "potential educative and ultimately larger
preventative benefit that can be achieved by open discussion of the
principles" enunciated in its decision.84
For its part, Yahoo! continued its legal battle and recently won a
judgment in U.S. District Court in California declaring that the French court
ruling cannot be recognized or enforced in the United States both because
the French court lacked jurisdiction in the first place and because the
judgment was impermissible under the First Amendment.85
An appeal of
that judgment is still pending.86
But however the American case is
ultimately resolved, the French courťs willingness to assert its norms over
cyberspace content originating elsewhere demonstrates some of the
difficulties that arise because of the ease with which online content crosses
territorial borders.
87. The Commerce Clause grants Congress the "power ... [t]o regulate commerce
with foreign nations, and among the several states." U.S. CONST. ART. I, §§ 8, cl. 3. Implicit
in this affirmative grant is the negative or "dormant" Commerce Clause--the principle that the
states impermissibly intrude on this federal power when they enact laws that unduly burden
interstate commerce. See, e.g., Gibbons v. Ogden, 22 U.S. (Wheat.) 1, 227 (1824) (Johnson,
J., concurring) ("And since the power to [regulate commerce] necessarily implies the power to
determine what shall remain unrestrained, it follows, that the power must be exclusive; it can
reside but in one potentate; and hence, the grant of this power carries with it the whole subject,
leaving nothing for the State to act upon.").
88. See, e.g., Philadelphia v. New Jersey, 437 U.S. 617 (1978); see also Pike v. Bruce
Church, Inc., 397 U.S. 137 (1970). Courts use the dormant commerce clause to assert
Congress' authority in two scenarios: (1) when, although Congress has not acted on the
particular issue, the state nevertheless has usurped Congress' commerce power; and (2) when
Congress has acted on the issue and the state's regulation directly conflicts with the action. See
id. The Supreme Courťs dormant commerce clause test asks three questions: (1) is the
regulation protectionist through either its means or its ends; (2) is it an even-handed law--does
it have a legitimate local purpose; and even if so, does the law nevertheless affect interstate
commerce; and (3) are the costs of the law worth the benefits? See id.
89. N.Y. Penal Law §§ 235.20(6), .21(3) (McKinney, WESTLAW through 2000
legislation).
90. American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 168-69 (S.D.N.Y. 1997).
25
E. The Challenge of the Dormant Commerce Clause
In the United States, courts have begun to invoke many of the same
extraterritoriality concerns raised by the Yahoo! case to strike down state
regulation of Internet activity under the so-called "dormant" Commerce
Clause.87
Generally speaking, the dormant Commerce Clause uses a
jurisdiction-like reliance on the fixed geographical boundaries among states
to limit state regulations based on their extraterritorial effects.88
In the
cyberspace context, such an emphasis on territorial boundaries threatens the
validity of many state efforts to regulate Internet activity. For example, in
one of the first cases to apply the dormant Commerce Clause to
cyberspace, a federal district court enjoined enforcement of a New York
statute that prohibited the intentional use of the Internet "to initiate or
engage" in certain pornographic communications deemed to be "harmful to
minors."89
The court reasoned that, because materials posted to the Web
anywhere are accessible in New York, application of the statute might chill
the activities of non-New York content providers and force them to
conform their behavior to New York's standard. Moreover, according to
the court, because states regulate pornographic communications differently,
"a single actor might be subject to haphazard, uncoordinated, and even
outright inconsistent regulation by states that the actor never intended to
reach and possibly was unaware were being accessed."90
Thus, the court
determined that the New York statute impermissibly regulated interstate
commerce.
Other courts have struck down state Internet regulations
concerning pornographic content on similar grounds. For example, courts
91. See ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999).
92. See PSINet, Inc. v. Chapman, 108 F. Supp. 2d 611 (W.D. Va. 2000).
93. See Cyberspace Communications, Inc. v. Engler, 55 F. Supp. 2d 737 (E.D. Mich.
1999).
94. Goldsmith & Sykes, supra note ?, at 787 (2001).
95. See Ferguson v. Friendfinder, Inc., No. 307309, at 2 (Cal. Super. Ct. June 2,
2000) (order sustaining demurrer). But see State v. Heckel, No. 24 P.3d 404 (Wash 2001)
(upholding Washington state law in face of dormant Commerce Clause challenge); see also Evan
Hansen, Court Kills Key Parts of Bulk Email Law, CNET NEWS, June 9, 2000;Carl S. Kaplan,
In Spam Case, Another Defeat for State Internet Laws, N.Y. TIMES, March 24, 2000.
96. See Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2000), aff'd in pt.,
rev'd in pt. on other grounds, Lorillard Tobacco Co. v. Reilly, 121 S.Ct. 2404 (2001); see also
Carl S. Kaplan, Ruling Favors Tobacco Companies, N.Y. TIMES, Nov. 17, 2000; cf. Sante Fe
Natural Tobacco Co., Inc. v. Spitzer, 00 Civ. 7274 (LAP) (S.D.N.Y. June , 2001) (permanently
enjoining, on dormant Commerce Clause grounds, state law that effectively prohibits Internet
and mail order sales of cigarettes).
97. See Knoll Pharmaceutical Co. v. Sherman, 57 F.Supp.2d 615, 623 (N.D. Ill.
1999).
98. Compare, e.g., Dan L. Burk, Federalism in Cyberspace, 28 CONN. L. REV. 1095,
1123-34 (1996); Bruce P. Keller, The Game's the Same: Why Gambling in Cyberspace Violates
Federal Law, 108 YALE L.J. 1569, 1593-96 (1999); David Post, Gambling on Internet Laws,
AM. LAW., Sept. 1998, at 97; Glenn Harlan Reynolds, Virtual Reality and "Virtual Welters": A
Note on the Commerce Clause Implications of Regulating Cyberporn, 82 VA. L. REV . 535,
537-42 (1996), with Goldsmith & Sykes, supra note ?.
26
have used the dormant Commerce Clause to invalidate a New Mexico
statute criminalizing dissemination by computer of materials harmful to
minors,91
a Virginia law regulating pornographic communications,92
and a
Michigan statute criminalizing the use of computers to distribute sexually
explicit materials to minors.93
But the reach of the dormant Commerce Clause has extended far
more broadly than that. Indeed, as commentators have pointed out, under
the logic of the New York case, "nearly every state regulation of Internet
communications will have the extraterritorial consequences the court
bemoaned," including state antigambling laws, computer crime laws,
consumer protection laws, libel laws, licensing laws, and many more.94
A
court in California, for example, invalidated, under the dormant Commerce
Clause, a state law regulating "junk" e-mail.95
Likewise, the First Circuit
ruled that a Massachusetts cigar advertising law, if applied to Internet
advertising, would violate the dormant Commerce Clause,96
and a federal
district court in Illinois similarly enjoined enforcement of a state statute
prohibiting advertising of certain controlled substances in part because the
pharmaceutical company challenging the ban would not be able to comply
with the statute unless it canceled all Internet advertising.97
Scholars have divided on whether the emerging dormant Commerce
Clause jurisprudence in cyberspace is justified,98
but it is clear that the same
concerns about cross-border regulation of the Internet that appear in the
international context raise challenges within a federal system as well. The
most recent wrinkle on this question is the "Jurisdictional Certainty Over
99. Jurisdictional Certainty over Digital Commerce Act, H.R. 2421, 107th
Cong.
(2001).
100. Id.
101. For a discussion of the bill, see Margaret Kane, Digital Commerce Sparks Tax
Tango, CNET NE W S.COM (July 20, 2001), http://news.cnet.com/news/0-1007-2006614719.html?tag=prntfr,
visited July 24, 2001.
102. Andreas P. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on Global
Networks, 19 MICH. J. INŤL L. 799, 800-01 (1998).
103. Jane C. Ginsburg, The Cyberian Captivity of Copyright: Territoriality and
Authors' Rights in a Networked World, 15 SANTA CLARA COMP . & HIGH TECH. L. J. 347, 34849
(1999).
27
Digital Commerce Act,"99
which was recently introduced in Congress. The
bill would reserve to Congress exclusively the right to regulate "commercial
transactions of digital goods and services conducted through the
Internet,"100
thus seemingly pre-empting all state regulation of online
activity.101
F. The Challenge of International Copyright
As the recent controversy over Napster has made clear, in the
online environment, works such as videos, recordings of musical
performances, and texts can be posted anywhere in the world, retrieved
from databases in foreign countries, or made available by online service
providers to subscribers located throughout the globe. Our system of
international copyright protection, however, historically has been based on
the application of national copyright laws with strictly territorial effects and
on the application of choice of law rules to determine which country's
copyright laws would apply.
Although such a network of national codes may have sufficed in an
era when the distribution or performance of works occurred within easily
identifiable discrete geographic boundaries, "[i]nstant and simultaneous
worldwide access to copyrighted works over digital
networks...fundamentally challenges territorial notions in copyright"102
and
complicates traditional choice of law doctrine because it is often difficult to
determine where particular acts have occurred. Thus, as one commentator
has asked, "if authors and their works are no longer territorially tethered,
can changes in the fundamental legal conceptions of existing regimes for the
protection of authors be far behind?"103
These changes, though not literally
concerned with the scope of adjudicatory jurisdiction, are arguably
necessary precisely because copyright law, like laws concerning jurisdiction,
rely upon geographical boundaries among nation-states that may not be
maintainable in the new online context.
104. This example is drawn from Ginsburg, supra, at 349-50, and is based on a
controversy in France involving the unauthorized scanning and uploading to a cybercafé's
website of Le Grand Secret, a banned biography of the late French President Francois Mitterand.
See id. at 349 n 3.
105. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 101 (1918) ("But
where two parties independently are employing the same mark upon goods of the same class,
but in separate markets wholly remote from the other, the question of prior appropriation is
legally insignificant...[except in cases of bad faith]." (quoting Hanover Milling Co. v. Metcalf,
240 U.S. 403, 415 (1915)).
28
For example,104
let us assume that a publisher produces a web
page, residing on a server in Holland. The web page includes photos taken
by both American and French authors. Some of the photos are taken from
magazines that the publisher has scanned and uploaded without permission
and other photos are simply copied from other websites, again without
permission. Assume further that the photographers now claim that the
publisher has violated U.S. copyright law on a similar theory to the one used
by the French court in the Yahoo! case: that the photos are available to be
accessed by U.S. users via the website.
This scenario raises a number of challenges. First, with respect to
the photos that were simply copied from other sites, were those photos ever
"published" and what are their countries of origin? Both of these are
important considerations under many copyright regimes. Second, which
country's copyright law applies? If we use Holland, where the website
resides, we will encourage web publishers seeking to evade onerous
copyright regimes simply to locate their sites in a less restrictive jurisdiction.
On the other hand, if we are free to use the law of any country where the
work is accessible, then again we potentially have the Yahoo! dilemma that
the law of the most restrictive country would in effect apply its law
extraterritorially throughout the world.
G. The Challenge of Domain Names as Trademarks
Historically, the boundaries of trademark law have been delineated
in part by reference to physical geography. Thus, if I own a famous
restaurant in New York City called "Berman's," I cannot prevent a person
in Australia from opening a restaurant that is also called "Berman's," even
if I have previously established a trademark in my name. The idea is that
customers would not be likely to confuse the two restaurants because they
are in markets that are spatially distinct.105
In the online world such clear
spatial boundaries are collapsed because, as a technological matter, there
can be only one bermans.com domain name, and it can only point to one of
the two restaurants.
In the early to mid 1990s, as corporations and entrepreneurs began
to understand the potential value of a recognizable domain name, pressure
increased to create trademark rights in domain names. For example, one
106. Panavision Inťl v. Toeppen, 141 F.3d 1316, 1326 (9th Cir. 1998) (quoting
Panavision Inťl v. Toeppen, 945 F.Supp. 1296, 1304 (C.D. Cal. 1996)).
107. Pub.L. No. 104-98, 109 Stat. 985 (codified at 15 U.S.C. §§ 1125, 1127
(Supp.1996)).
108. Pub.L. No. 106-113 (1999); see H.R.Rep. No. 106-479 (Nov. 18, 1999).
109. See H.R.Rep. No. 106-412, at 5-7; S.Rep. No. 106-140, at 4-7 (1999).
110. For example, Yochai Benkler has argued that the strong protection of
trademarks in domain names "has maintain[ed] the value of brand names at the expense of the
efficiency of electronic commerce." Yochai Benkler, Net Regulation: Taking Stock and
Looking Forward, 71 U. COLO. L. REV. 1203, 1256 (2000) According to Benkler, the current
approach first assumes that consumers will, for the foreseeable future, seek out websites
primarily by typing into their browser a uniform resource locator ("URL") such as http://
www.brandname.com, rather than by using search engines or product review sites and then
asserts that the brand-name in the URL therefore must be controlled by the owner of the
trademark in that brand-name. See id. at 1256. This is, however, not just to assume a static
model for the digital environment where customer habits, browser configurations, and search
engines will continue as they are, but to enforce such a static model backed by the power of law.
See id. at 1257. As Benkler points out,
The private stakes for those corporations who have invested in building
brand recognition and plan to recoup their investments by exercising some
29
early Internet domain name dispute involved the Panavision Corporation,
which holds a trademark in the name "Panavision." In 1995, Panavision
attempted to establish a website with the domain name panavision.com, but
found that the name had already been registered to Dennis Toeppen. When
contacted by Panavision, Toeppen offered to relinquish the name in
exchange for $13,000. Panavision sued, arguing that Toeppen's registration
violated trademark law despite the fact that Toeppen's Panavision site
(which included photographs of the City of Pana, Indiana) could hardly be
confused with the Panavision Corporation. The Ninth Circuit agreed with
the trial court that Panavision's inability to use the panavision.com website
diminished the "`capacity of the Panavision marks to identify and distinguish
Panavision's goods and services on the Internet.'"106
In so doing, the court
was, in effect, expanding the geographical reach of trademark law, at least
with regard to domain names. While I still could not sue Berman's
Restaurant in Australia for violating my trademark, I would now have a
cause of action concerning the bermans.com domain name if the Australian
Restaurant registered the name ahead of me.
The U.S. Congress subsequently enacted legislation confirming this
expansion of trademark law. Under pressure from trademark holders,
Congress first passed the Federal Trademark Dilution Act107
and then the
Anticybersquatting Consumer Protection Act (ACPA),108
which provides
an explicit Federal remedy to combat so-called "Cybersquatting."
According to the Congressional Reports, the Act is meant to address cases
like Panavision, where non-trademark holders register well-known
trademarks as domain names and then try to "ransom" the names back to
the trademark owners.109
Nevertheless, even if one believes that reigning in "cybersquatters"
is a laudable goal (and even that goal has been debated),110
there can be
price discipline using the value of their brand name as a search-cost saving
device for consumers are obvious. The public benefits of protecting these
costs by encouraging consumers not to take advantage of the reduced
search costs in the electronic commerce environment are more
questionable.
Id. Thus, he suggests that we might instead "accept the declining importance of trademarks in
the digital environment, limit legal protection to situations where competitors try to use a mark
to confuse consumers, and abandon the notion of dilution as protection of goodwill, which
developed to protect the famous marks most useful in the old environment." Id. at 1249; cf.,
e.g., Manchester Airport PLC v. Club Club Ltd., Case No. D2000-0638, WIPO Arbitration and
Mediation Administrative Panel Decision (Aug. 22, 2000), available at
http://arbiter.wipo.int/domains/decisions/html/2000/d2000-0638.html ("It is not contested that
the Respondent has attempted to sell the Domain Name to the Complainant for an amount well
in excess of the registration fees. But selling a domain name is not per se prohibited by the
ICANN Policy (nor is it illegal or even, in a capitalist system, ethically reprehensible.").
111. See, e.g., Mecklermedia Corp. v. DC Congress GmbH, 1 All E.R. 148, 160 (Ch.
1998) (reaching a different conclusion on ownership of a mark from the one reached in other
countries).
112. See 15 U.S.C. § 1125(d).
113. A registrar is one of several entities, for a given top-level domain (such as .com,
.edu, .gov, .uk, etc.) that is authorized by the Internet Corporation for Assigned Names and
Numbers to grant registration of domain names. See DAVID BENDER, COMPUTER LAW §
3D.03[3] at 3D-56 (updated to 2000).
114. Compare, e.g., Fleetboston Financial Corp. v. Fleetbostonfinancial.com, 138
F.Supp.2d 121, (D.Mass. Mar 27, 2001 (finding that in rem provisions of ACPA violate due
process when domain name registration paper is subsequently transferred to a district other than
the district where registrar is located); Heathmount A.E. Corp. v. Technodome.Com, 106
F.Supp.2d 860, 865-66 (E.D.Va.2000) (finding that the registration of a domain name, without
more, cannot be sufficient minimum contacts for the purposes of in personam jurisdiction);
America Online, Inc. v. Chih-Hsien Huang, 106 F.Supp.2d 848, 855-60 (E.D.Va.2000) (finding
that filing an online domain name registration agreement with Network Solutions is not
sufficient contact with Virginia to justify in personam jurisdiction) with Caesars World, Inc. v.
30
little doubt that the application of trademark law to domain names has meant
that trademark law has become unmoored to physical geography and is now
more likely operate extraterritorially. Potentially, even those who are
legitimately using a website that happens to bear the name of a famous
mark held by an entity across the globe could be forced to relinquish the
name.
Moreover, each of the parties claiming ownership in a trademark
could sue in a different country and, because of differences in substantive
law, each party could win.111
Thus, with the increasing scope of trademark
law in cyberspace, the next question becomes: how shall any domain name
decision be enforced? The ACPA attempts to address this problem by
providing in rem jurisdiction over the domain name itself wherever that
name is registered.112
Thus, for example, if people register domain names
online via a website owned by Network Solutions, a domain name
registrar113
corporation located in Virginia, they potentially can be forced,
under the ACPA, to defend a trademark action in Virginia whether or not
they have ever set foot in Virginia or knew Network Solutions was a
Virginia corporation. This in rem provision has proven to be
controversial,114
however, and it remains to be seen whether courts will find
Caesars- Palace.Com, 112 F.Supp.2d 502, 504 (E.D.Va. 2000). (finding sufficient contacts for
purposes of in rem jurisdiction); Lucent Technologies, Inc. v. Lucentsucks.com, 95 F.Supp.2d
528, 535 n. 5 (E.D.Va.2000) (Brinkema, J.) (finding that registration is sufficient minimum
contact for in personam jurisdiction).
115. The resolution of this question probably rests ultimately on whether courts
interpret the U.S. Supreme Courťs decision in Shaffer v. Heitner , 433 U.S. 186 (1977), to have
extended the constitutional requirements of International Shoe to all in rem actions (or at least
those that do not involve real property). Some courts read Shaffer narrowly, see, e.g., Caesars
World, Inc. v. Caesars-Palace.Com, 112 F.Supp.2d 502, 504 (E.D.Va. 2000) ("under Shaffer,
there must be minimum contacts to support personal jurisdiction only in those in rem
proceedings where the underlying cause of action is unrelated to the property which is located
in the forum state"), and even some members of the U.S. Supreme Court have taken that
approach, see Burnham v. Superior Court of California, cite, (Plurality Opinion of Scalia, J.).
On the other hand, dicta in Shaffer suggests that the Supreme Court intended its holding to
extend the minimum contacts test of International Shoe to all in rem jurisdiction, not solely
to the subcategory of in rem cases specifically at issue. See, e.g., Shaffer, 433 U.S. at 212
(stating that, henceforth, " all assertions of state-court jurisdiction must be evaluated according
to the standards set forth in International Shoe and its progeny."); id. ("The fiction that an
assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner
of the property supports an ancient form without substantial modern justification.") Thus,
Shaffer may be taken to stand for the proposition that Congress cannot avoid the Constitutional
requirements of fair play and substantial justice simply by calling an action in rem, and by
limiting recovery to the res itself.
116. For a description of ICANN and its history, see generally Developments in the
Law--The Law of Cyberspace V: The Domain Name System: A Case Study of the Significance
of Norms to Internet Governance, 112 HARV. L. REV. 1657 (1999).
117. For example, a recent study of ICANN's and WIPO's Uniform Dispute
Resolution Policy suggests that the arbitration system is fundamentally biased in favor of
trademark holders. See Michael Geist, Fair.com?: An Examination of the Allegations of
Systemic Unfairness in the ICANN UDRP, available at http://aix1.uottawa.ca/~geist/g.PDF;
Steven Bonisteel, Law Expert Charges Bias in Domain-Dispute Arbitrations, NEWSBYTES (Aug.
20, 2001), available at http://www.newsbytes.com/news/01/169180.html; see also Michael
Geist, Fundamentally Fair.Com? An Update on Bias Allegations and the ICANN UDRP,
available at http://www.lawbytes.ca (updating study and responding to methodological criticisms).
For criticisms of ICANN from the perspective of democratic legitimacy and administrative
transparency, see, e.g., A. Michael Froomkin, Wrong Turn in Cyberspace, Using ICANN to
Route Around the APA and the Constitution, 50 DUKE L.J. 17 (2000); David Post, Governing
Cyberspace, or Where is James Madison When We Need Him?, available at
h t t p : / / w w w . t e m p l e . e d u / l a w s c h o o l / d p o s t / i c a n n / c o m m e n t 1 . h t m l ; see generally
www.ICANNWatch.org. For similar criticisms of WIPO, see, e.g., A. Michael Froomkin, Of
Governments and Governance, 14 BERKELEY TECH. L.J. 617, 618 (1999) ("As an
31
that such assertions of jurisdiction comport with Constitutional Due Process
guarantees.115
In the meantime, domain name trademark disputes are increasingly
resolved through online arbitration under the auspices of the Internet
Corporation for Assigned Names and Numbers, a not-for-profit corporation
that administers the domain name system,116
and the World Intellectual
Property Organization, a United Nations administrative body. While the
ability of these organizations to govern domain names is not hemmed in by
geographical borders, they face their own legitimacy problems because they
are quasi-governmental entities exercising de facto governing power over
the Internet without structures of democratic accountability or transparency
that some think necessary.117
Thus, even this alternative to the problem of
international body all too willing to take up the reigns of global governance, WIPO attempted
to create global e-commerce friendly rules by a process that, left to itself, seemed likely to
consist predominantly of meeting with commercial interest groups and giving little more than
lip service to privacy and freedom of expression concerns.")
118. This subsection is largely derived from Patricia L. Bellia, Chasing Bits Across
Borders, 2001 U. CHI. L. FORUM 35 (2001).
119. The targeted sites included Amazon.com, Buy.com, CNN.com, eBay, E*Trade,
MSN.com, Yahoo!, and ZDNet. See Charles Cooper, New Cybersport: Taking Out Web Sites,
Z D N E T N E W S ( F e b . 1 0 , 2 0 0 0 ) ,
http://www.zdnet.com/zdnn/stories/news/0,4586,2435899,00.html (listing targeted sites). For
a description of the incidents, see Internet Denial of Service Attacks and the Federal Response,
Hearing Before the Subcommittee on Crime of the House Committee on the Judiciary and the
Subcommittee on Criminal Justice Oversight of the Senate Committee on the Judiciary, 106th
Cong., 2d Sess. 35-37 (2000) (statement of Michael A. Vatis, Director, National Infrastructure
Protection Center, Federal Bureau of Investigation) (describing attacks); Cybercrime, Hearing
Before the Subcommittee on Commerce, Justice, State, the Judiciary, and Related Agencies of
the Senate Committee on Appropriations, 106th Cong., 2d Sess. 25-26 (2000) (statement of
Louis J. Freeh, Director, Federal Bureau of Investigation) (same).
120. See Paul Festa and Joe Wilcox, Experts Estimate Damages in the Billions for
Bug, CNET NEWS.COM (May 5, 2000), http://news.cnet.com/news/0-1003-200-1814907.html;
Electronic Communications Privacy Act of 2000, Digital Privacy Act of 2000 and Notice of
Electronic Monitoring Act, Hearings on HR 5018, HR 4987, and HR 4908 before the
Subcommittee on the Constitution of the House Committee on the Judiciary, 106th Cong., 2d
Sess. (2000) (statement of Kevin DiGregory, Deputy Assistant Attorney General, Criminal
Division, Department of Justice).
121. See Mike Carter, E-sting Nets 2 Russian Hackers; FBI Alleges Pair Stole Credit
Info, Seattle Times A1 (Apr 23, 2001); Robert Lemos, FBI Nabs Russian Hackers, ZDNet News
( A p r 2 3 , 2 0 0 1 ) , a v a i l a b l e o n l i n e a t
<http://www.zdnet.com/zdnnn/stories/news/0,4586,508199,00.html> (visited May 4, 2001);
Robert Lemos, FBI "Hack" Raises Global Security Concerns, CNET News.com (May 1, 2001),
available online at <http://news.cnet.com/news/0-1003-202-5785729.html> (visited May 12,
2001). In May 2001, a district court denied a motion to suppress the evidence downloaded from
the Russian servers. United States v Gorshkov, No CR00-500C (W D Wash May 23, 2001)
(order denying motion to suppress evidence).
32
territorially-based Internet governance faces substantial challenges.
H. The Challenge of International Computer Crime118
In the past few years, the increasing problem of computer crime
has captured public attention. In the year 2000 alone, several incidents
illuminated the scope of the challenge. In February, the websites of at least
eight major U.S.- based Internet companies were crippled by so-called
"denial of service" attacks unleashed by a computer hacker.119
A few
months later, the "I Love You" virus infected 45 million computers
worldwide.120
And in November FBI investigators conducted a
controversial sting operation in which they lured two Russians suspected of
participating in a hacking ring to the United States, captured their
passwords, and then used the passwords to connect to a Russian computer
network and download incriminating data from the hackers' Russian
servers, all before obtaining a search warrant.121
122. See generally National Gambling Impact Study Commission, Final Report
chapter 5 (June 1999), available online at <http://www.ngisc.gov/reports/fullrpt.html> (visited
Jan 29, 2001) (describing the emergence, rapid growth, and various forms of Internet gambling
and recommending methods of federal regulation).
123. See Report of the Presidenťs Working Group on Unlawful Conduct on the
Internet, The Electronic Frontier: The Challenge of Unlawful Conduct Involving the Use of the
Internet app C (March 2000), available online at <http://www.cybercrime.gov/unlawful.pdf>
(visited Sept 14, 2000) (hereinafter "Unlawful Conduct Report") (addressing online child
pornography, child luring, and related offenses and discussing federal laws and initiatives to
protect children).
124. See Robin Fields, Emulex Stock Hoax Was Triggered by E-Mail Release, L.A.
TIMES C1 (Aug 31, 2000) (describing how email and the Internet were used to distribute a false
press release); John F.X. Peloso and Ben A. Indek, Overview of SEC's Response to the Internet
in Securities Markets, N.Y L. J. 3 (Oct 19, 2000) (explaining various SEC actions taken in
response to the rise in cases of Internet securities fraud).
125. Unlawful Conduct Report, supra note 123, at app I (discussing software piracy
and intellectual property theft and describing federal laws and initiatives to prevent such crimes).
The question of extraterritoriality in combating such piracy has arisen in the prosecution of
Russian computer programmer Dmitry Sklyarov for violations of the Digital Millennium
Copyright Act, codified at 17 U.S.C. §§ 1201 (Supp. V 1999). Sklyarov was accused of violating
the Act based on his activities in Russia, where they were legal. See Russian Police Say
Programmer Arrested in U.S. Broke No Russian Laws, SILICON VALLEY.COM (July 27, 2001).
For more on the Sklyarov controversy, see, e.g., Lawrence Lessig, Jail Time in the Digital Age,
N.Y. TIMES (Jul. 30, 2001), at A17.
126. Commentators frequently distinguish among these three types of criminal
conduct: computer as target; computer as tool; and computer as incidental storage of material
related to the crime. See, e.g., Bellia, supra note 118, at 37-38; Michael A. Sussmann, The
Critical Challenges from International High-Tech and Computer-Related Crime at the
Millennium, 9 DUKE J CO M P & INŤL L. 451, 455 (1999); Marc D. Goodman, Why the Police
Don't Care About Computer Crime, 10 HARV. J. L. & TECH. 465, 468-69 (1997); Scott
Charney & Kent Alexander, Computer Crime, 45 EMORY L. J. 931, 934 (1996); Unlawful
Conduct Report, supra note 123, at 7-9.
127. See Canada Broadens Its Case Against Suspected Hacker, N.Y TIMES (Aug 4,
2000), at C5.
33
Moreover, criminalconduct involving computers extends far beyond
simply crimes perpetrated against computer networks, such as hacking.
For example, computer networks can be used to facilitate online forms of
traditional crimes, such as gambling,122
child pornography,123
fraud,124
and
software piracy.125
In addition, a computer may simply contain evidence
relevant to a criminal investigation.126
Certainly, with the heightened
interest of governments worldwide in combating terrorism, tracking crime
through electronic means is increasingly a priority.
In these circumstances national borders may be inconsequential
both to the commission of the crime or the location of the relevant evidence.
The denial of service attacks on U.S. websites originated in Canada.127
128. See ISP Tracks "Love" Bug Through Caller ID, CNET NEWS.COM (May 15,
2000), available online at <http://news.cnet.com/news/0-1003-200-1877238.html> (visited Sept
14, 2000) (stating that virus apparently originated in Manila); "Love" Bug Release May Have
B e e n A c c i d e n t a l , CNET NE W S.COM (May 11, 2000), available online at
<http://news.cnet.com/news/0-1003-200-1855997.html> (visited Sept 14, 2000) (noting effect
on government and corporate systems in more than 20 countries).
129. See, e.g., People v World Interactive Gaming Corp, 714 NYS 2d 844, 851-53
(N.Y. Sup. Ct. 1999) (holding that Antigua-based corporation violated New York and federal
gambling laws by offering gambling to Internet users in the United States).
130. See, e.g., Crackdown on Net Child Porn, CNET NEWS.COM (Sept 2, 1998),
available online at <http://news.cnet.com/news/0-1005-200-332841.html> (visited Sept 14,
2000) (reporting over 100 people arrested in 12 countries and over 100,000 images seized in
crackdown).
131. See, e.g., Declan McCullagh, Spam Oozes Past Border Patrol, WIRED.COM
(Feb. 23, 2001), available at http://www.wired.com/news/print/0,1294,41860,00.html, visited
Aug. 9, 2001 (reporting that an increasing amount of unsolicited commercial e-mail is
originating from overseas sites and flowing through non-U.S. servers).
132. Bellia, supra note 118, at 56.
133. See Jonathan I. Edelstein, Note, Anonymity and International Law Enforcement
in Cyberspace, 7 FORDHAM INTEL. PROP., MEDIA & ENTER. L. J. 231, 265-67 (1996)
(discussing the possibility of countries using anonymous remailers and computer secrecy laws to
create data havens for criminals).
134. Bellia, supra note 118, at 42.
34
The "I Love You" virus originated in the Philippines.128
Gambling129
or
child pornography130
or "spam"131
operations targeting users in one
jurisdiction will often locate their servers elsewhere. And, as online
activities become ubiquitous, even cases that do not otherwise have a
computer component, will increasingly require electronic evidence that may
or may not be located within the jurisdiction. Indeed, "[t]he physical
location of electronic evidence...often depends upon the fortuity of network
architecture: an American subsidiary of a French corporation may house all
of its data on a server that is physically located in France; two Japanese
citizens might subscribe to America Online and have their electronic mail
stored on AOĽs Virginia servers."132
Or, a criminal might deliberately
store computer files in a jurisdiction that affords greater privacy
protection.133
Moreover, as the FBI sting operation involving the Russian hackers
demonstrates, the jurisdictional challenges of international computer crime
include not simply how to enforce criminal laws across borders but also
how to investigate such cases. As one commentator has observed:
A state conducting a cross-border search and the target
state are likely to have different perspectives on the issue.
The searching state may view its actions as merely
advancing a claimed power to regulate extraterritorial
conduct causing harmful effects within its own borders.
The target state, however, may view a remote crossborder
search itself as extraterritorial conduct with harmful
local effects.134
135. See id. at 42-43.
136. In the United States, the Supreme Court has made clear that crimes can only be
prosecuted in the district where the acts constituting the criminal offense occurred. See United
States v. Cabrales, 524 U.S. 1 (1998) (ruling that money laundering charge could only be
prosecuted where the alleged acts of laundering took place, not in the district where the crimes
generating the money allegedly occurred). Needless to say, determining the precise geographical
location of criminal acts occurring in cyberspace may pose difficulties under the Cabrales
standard.
137. Sands, supra note 31, at 529.
138. Hatch v. Baez, 7 Hun 596 (N.Y. 1876).
139. Id. at 600.
140. Spiro, supra note 19, at 567.
35
Indeed, the target state might well decide that it needs to protect its citizens
from the extraterritorial investigations of other countries either by imposing
privacy or property protections that limit the scope of investigations or by
attempting to bar the investigations altogether.135
Thus, as computers are
increasingly involved in international criminal activities, we can expect
continued debate about whether, and under what circumstances, crossborder
searches, international investigations, and extraterritorial
enforcement actions are permissible or legitimate.136
I. The Challenge of International and Transnational Human Rights
Enforcement
International law has traditionally been viewed as a set of rules
agreed upon by countries and meant to govern the relations between them.
Indeed, until the 20th century, the state was the primary entity in
international law, and the need to protect its sovereignty was paramount.
As one commentator has observed, "there were relatively few rules of
international law--and certainly no rules protecting fundamental human
rights or the environment which could be invoked to override immunity or
to claim an interest beyond a state's territory."137
For example, in 1876,
when an American citizen asked a New York state court to assert
jurisdiction over Buenaventura Baez, the former President of the Dominican
Republic, for injuries caused by Baez when he was President, the court
refused to hear the case despite the fact that Baez was physically present
in New York at the time.138
According to the court, Baez was immune
from jurisdiction because such immunity was "essential to preserve the
peace and harmony of nations."139
The world of international law looks very different today. Indeed,
"[w]e appear to be in the midst of a sweeping away of foundations that had
been in place if not for a millennium than at least for several centuries."140
Increasingly, international law is no longer simply the preserve of nationstates,
effective over a narrow range of issues. Rather, we have seen the
creation of regional and global institutions, treaties and other international
141. See, e.g., Michael Byers, The Law and Politics of the Pinochet Case, 10 DUKE
J. COMP. & INŤL L. 415, 441 (2000) (arguing that "the development of international human
rights and the more recent growth of an `international civil society' reflect an international
system that is slowly but surely embracing the rule of law" and "challeng[ing] the prerogatives
of state sovereignty (along with its cynical politics and reliance on military and economic
power), with moral authority and the slow but sure evolution of binding rules and effective
judicial processes."). Philippe Sands has made a similar observation:
[In the twentieth century,] [r]egional and global institutions were created.
Treaties and other international obligations were adopted across a broad
range of subject areas, establishing limits on sovereign freedoms. New
standards were adopted seeking to protect and promote fundamental
human rights and, more recently, conserve the environment. Gradually,
new actors emerged with an international voice, of which corporations and
NGOs were to become the most active. Inherent in these
developments--but not explicitly conceived--were the seeds for change:
the development of a new consciousness of international public law
governing legal relations beyond the nation state, available to influence
public and administrative law at the national level, and accessible to an
emergent international civil society.
Sands, supra note 31, at 530.
142. See Harold Hongju Koh, The Globalization of Freedom, 26 YALE J. INŤL L.
305, 305 (2001) ("[T]he most striking change in the law since I graduated from law school
more than two decades ago is the rise of a body of law that is genuinely transnational--neither
fish nor fowl, in the sense that it is neither traditionally domestic nor traditionally
international."); see also Boutros Boutros-Ghali, An Agenda for Democratization, 51st Sess., at
973, U.N. Doc. A/51/761 (1996) (observing that international relations "are increasingly shaped
not only by the States themselves but also by an expanding array of non-State actors on the
`internationaľ scene").
143. Sands, supra note 31, at 530.
144. Mary Robinson, Foreword, in T HE PRINCETON PRINCIPLES ON UNIVERSAL
JURISDICTION 15-16 (2001) [hereinafter PRINCETON PRINCIPLES].
36
obligations that have established limits on sovereign autonomy.141
Moreover, non-state actors are playing a larger role, including nongovernmental
organizations, multi-national corporations, worldwide religious
movements, subnational governmental and administrative bodies, and
regional and international institutions.142
What arises from these changes
is "the development of a new consciousness of international public law
governing legal relations beyond the nation-state, available to influence
public and administrative law at the national level, and accessible to an
emergent international civil society."143
The most striking example of this development is the increasing
willingness of states to apply principles of universal jurisdiction. As Mary
Robinson, United Nations High Commissioner on Human Rights, recently
explained, "universal jurisdiction is based on the notion that certain crimes
are so harmful to international interests that states are entitled--and even
obliged--to bring proceedings against the perpetrator, regardless of the
location of the crime or the nationality of the perpetrator or the victim."144
While the principle of universal jurisdiction has long existed, it is rapidly
becoming a significant challenge to the assumed prerogatives of national
145. See generally Harold Hongju Koh, Transnational Public Law Litigation, 100
YALE L. J. 2347 (1991); see also PRINCETON PRINCIPLES, supra note 144, at 25 (2001)
(offering a set of "principles to guide, as well as to give greater coherence and legitimacy to, the
exercise of universal jurisdiction.").
146. See Amber Fitzgerald, The Pinochet Case: Head of State Immunity Within the
United States , 22 WHITTIER L. REV. 987, 1011-12 (2001) (citing cases indicating an
"international trend of denying immunity to heads of state").
147. See Provisional Arrest Warrant by Nicholas Evans, Metropolitan Magistrate,
Bow Street Magistrates' Court, London, England for Augusto Pinochet Ugarte (Oct. 16, 1998).
Although the House of Lords, in its final decision, ultimately determined that the International
Convention Against Torture provided its source of jurisdiction (rather than general principles
of universal jurisdiction), Regina v. Bartle and the Commissioner of Police for the Metropolis
and Others ex parte Pinochet, 37 I.L.M. 1302 (1998) (Eng.), the convention itself can be seen
as codifying the principles of universal jurisdiction.
148. Id. For the various Spanish and English court documents in the Pinochet case,
see generally PINOCHET PAPERS, supra note 28. For further discussion of the case, see
generally T HE PINOCHET CASE: A LEGAL AND CONSTITUTIONAL ANALYSIS (Diana
Woodhouse ed., 2000); Byers, supra note 141; J. Craig Barker, The Future of Former Head of
State Immunity after ex parte Pinochet, 48 INŤL & COMP. L. Q. 937 (1999); Andrea Bianchi,
Immunity versus Human Rights: The Pinochet Case, 10 EUR. J. INŤL L. 237 (1999); Michael
Byers, Decisions of British Courts During 1999 Involving Questions of Public International Law,
70 BRITISH YEARBOOK OF INŤL L. 277, 277-95 (1999); Christine Chinkin, In Re Pinochet,
93 AM. J. INŤL L 703 (1999); Hazel Fox, The Pinochet Case No. 3, 48 INŤL & COMP. L. Q.
687 (1999); Colin Warbrick, Extradition Law Aspects of Pinochet 3, 48 INŤL & COMP. L. Q.
958 (1999).
149. See Reed Brody, The Prosecution of Hissne Habré--An "African Pinochet",
35 NEW ENG. L. REV. 321, 321 (2001). An appeals court subsequently quashed the indictment,
see id., and in March 2001 Senegaľs highest court ruled that Senegal had no jurisdiction to
pursue crimes not committed in the country. See Senegal Bars Charges Against Ex Chad
Dictator (Human Rights Watch Press Release), March 20, 2001, available at
http://www.hrw.org/press/2001/03/habre0320.htm. For background on the case, see Brody,
supra; see also Inbal Sansani, The Pinochet Precedent in Africa: Prosecution of Hissne Habré,
8 HUM. RTS. BRIEF, Winter, 2001, at 32..
37
sovereignty.145
Similarly, we are seeing an erosion of long-standing sovereignty
principles that gave heads of state immunity from prosecution before foreign
or international tribunals.146
For example, on October 16, 1998, a magistrate
in London issued a provisional warrant for the arrest of Senator Augusto
Pinochet Ugarte, pursuant to an extradition request arising from a
prosecution initiated by Spanish judge Juan Garzon, who asserted universal
jurisdiction over acts of genocide, hostage-taking, and torture while Pinochet
was Chile's head of state.147
Although Pinochet claimed immunity, the
British House of Lords ruled, in contrast to the New York court ruling in the
Baez case a century before, that Pinochet had no entitlement to claim
immunity for the crimes of which he was accused.148
Pinochet appears not to be an isolated case. In February 2000, a
Senegalese court indicted Chaďs exiled former dictator, Hissne Habré, on
torture charges and placed him under virtual house arrest, marking the first
time an African country had brought human rights charges against another
nation's head of state.149
Likewise, Slobodan Milosovic, the former Serbian
150. See, e.g., R. Jeffrey Smith, Serb Leaders Hand Over Milosevic For Trial by War
Crimes Tribunal; Extradition Sparks Crisis in Belgrade, WASH. POST (Jun. 29, 2001), at A1,
available at http://washingtonpost.com/wp-dyn/world/issues/balkans/A59234-2001Jun28.html;
see also Peter Finn, International Justice Proves its Reach, WASH. POST (Jun. 29, 2001), at
A 1 , a v a i l a b l e a t
http://washingtonpost.com/wp-dyn/world/issues/balkans/A59332-2001Jun28.html ("When the
war crimes tribunal for the former Yugoslavia was created by the United Nations in 1993, its
underlying promise was that no one--whether president or lowly private--was beyond the reach
of international justice. Today, in the most dramatic moment in its history, the tribunal made
good on that pledge.").
151. 28 U.S.C. § 1350.
152. Id.
153. Filártiga v. Pea-Irala, 630 F.2d 876 (2d Cir. 1980).
154. See BETH STEPHENS & MICHAEL RATNER, INTERNATIONAL HUMAN
RIGHTS LITIGATION IN U.S. COURTS 343-48 (1996) (summarizing ACTA cases); see also
William Glaberson, U.S. Courts Become Arbiters of Global Rights and Wrongs, N.Y. TIMES
(date), at A1.
155. Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note).
156. See id.
157. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).
158. Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996).
159. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), reh'g den., 74 F.3d 377 (2d Cir.
1996).
38
leader, has now been extradited to appear before an international tribunal.150
In addition, over the past two decades, aliens have begun to bring
human rights suits in the United States against foreign and U.S.
governments and officials under the Alien Tort Claims Act (ATCA).151
Although the jurisdictional reach of this act is governed by the same due
process/minimum contacts limitations as all other suits, the act does grant
federal courts original subject matter jurisdiction over "any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty
of the United States."152
Enacted as part of the Judiciary Act of 1789, this
statute, according to a 1980 ruling by the Second Circuit, permits federal
courts to hear suits by aliens alleging torture committed by officials of
foreign governments.153
Later decisions have upheld suits for genocide,
war crimes, summary execution, disappearance, prolonged arbitrary
detention and cruel, inhuman or degrading treatment.154
In 1992, Congress
also passed the Torture Victim Protection Act,155
which reinforces and
expands the ATCA by defining specific causes of action alleging torture
and summary execution and by permitting U.S. citizens as well as aliens to
bring suit.156
In recent years, successful suits have been brought under
these statutes against various members of the Guatemalan military,157
the
Estate of former Philippine leader Ferdinand Marcos,158
and Serbian
General Radovan Karadzic.159
Although these are civil cases, and many of
the monetary judgments issued may never actually be paid, the suits have
strong symbolic and emotional value for the victims, they may deter
potential defendants from entering U.S. territory, and they reinforce the
160. See STEPHENS & RATNER, supra note 154, at 234-38 (discussing nonmonetary
impact of ACTA and TVPA claims).
161. See The Complaint Against Ariel Sharon for his involvement in the massacres
at Shabra and Shatila, filed in Brussels, Belgium, June 18, 2001, available at
http://www.mallat.com/articles/complaintenglish.htm, visited Aug. 10, 2001. For press coverage
of the case, see, e.g., Nicholas Blanford, Sharon Begins to Take War-Crimes Lawsuit Seriously,
CHRISTIAN SCIENCE MONITOR (July 30, 2001); Clyde Haberman, Israel is Wary of Long Reach
in Rights Cases, N.Y. TIMES (July 28, 2001), at A1, A6; Constant Brand, Court Asked to Indict
Sharon over Palestinian Massacre, INDEPENDENT (June 18, 2001).
162. See Blanford, supra note 161.
163. See Democratic Republic of the Congo v. Belgium (re Arrest Warrant of 11
April 2000),Intľ Court of Justice (Feb. 14, 2002), available at http://www.icjcij.org/icjwww/idocket/iCOBE/iCOBEframe.htm,
visited March 20, 2002.
1 6 4 . S e e i d . , d i s s e n t i n g o p i n i o n s , a v a i l a b l e a t
http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm; see also, e.g., International
Court of Justice's Ruling on Belgian Arrest Warrant Undermines International Law, Press
Release of International Commission of Jurists (Feb. 15, 2002), available at
http://www.icj.org/press/press02/English/congob.htm, visited Feb. 16, 2002 ("International
humanitarian law and international human rights law have accorded national States jurisdiction
over persons committing international crimes in order to combat impunity. Yesterday's
decision is one that might have been expected sixty years ago, but not in the light of presentday
law.").
165. See G.A. Res. 207, U.N. GAOR, 51st Sess., Supp. No. 49, vol. I, 88th mtg. at
343, U.N. Doc. A/51/49 (1996) (issuing a mandate to the preparation committee responsible
for drafting the statute).
166. See Robert Rosenstock, Symposium, Should There Be an International Tribunal
for Crimes Against Humanity, 6 PACE INŤ L L. REV. 84 (1994); Benjamin B. Ferencz, An
International Criminal Code and Court: Where They Stand and Where They're Going, 30
COLUM. J. TRANS. L. 383-384 (1992). Indeed, A United Nations Committee on International
Criminal Jurisdiction first submitted a draft statute for an international criminal court as early
as 1953. See Revised Draft Statute for an International Criminal Court (Annex to the Report
of the Committee on International Criminal Jurisdiction), 7 U.N. GAOR, Supp. No. 12, at 23,
39
principle of universal (or at least transnational) jurisdiction.160
International human rights suits against former and current
governmental officials have been brought in courts outside the United States
as well. For example, in addition to the Pinochet and Habré cases, lawyers
representing survivors of the 1982 Israeli invasion of Lebanon have asked
a Belgium court to indict Israeli Prime Minister Ariel Sharon, who was then
the Defense Minister, for war crimes.161
Indeed, the Israeli government
takes the threat of foreign assertions of jurisdiction over human rights claims
so seriously that it recently issued an advisory to all government, security,
and army officials, warning them that foreign travel could subject them to
law suits.162
Although the International Court of Justice recently halted a
Belgium prosecution of the former Foreign Affairs Minister of the
Democratic Republic of Congo, citing the need for governmental immunity
in some circumstances,163
the sharp criticism this decision inspired164
demonstrates that the overall landscape for international human rights suits
has changed.
Finally, plans for a permanent International Criminal Court,165
which
had languished during the Cold War era because of concerns about
incursions on national sovereignty,166
are nearing fruition.167
The Courťs
U.N. Doc. A/2645 (1954).
167. For updated information on the status of the ICC, see Rome Statute of the
International Criminal Court, at http://www.un.org/icc (last updated on Nov. 5, 2001).
168. Rome Statute of the International Criminal Court, United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an International Criminal Court, art.
5, U.N. Doc. A/CONF.183/9 (1998), at http://www.un.org/icc., preamble and Article 20.
169. Id.
170. Indeed, the United States continues to object to the ICC on the ground that it
will unduly interfere with its sovereignty. See, e.g., Norman Kempster, U.S. May Back
Creation of Special Atrocity Tribunal War Crimes: New Envoy Says Administration Remains
Opposed to Plan for a Worldwide Court, LA TIMES, Aug. 2, 2001, at A4, available at 2001 WL
2507570; Editorial, Why America Says No, OMAHA WOLRD-HERALD, July 22, 2001, at 18A,
available at 2001 WL 9581188; Brett D. Schaefer, Overturning Clinton's Midnight Action on
t h e I n t e r n a t i o n a l C r i m i n a l C o u r t ( J a n . 9 , 2 0 0 1 ) a v a i l a b l e a t
http://www.hertitage.org/library/execmemo/em708.html; Bush Administration Ponders Position
Towards International Criminal Court, 17 Inťl Enforcement L. Rep. (Inťl Enforcement Law
Reporter) § XIV (June 2001), http://www.globalpolicy.org/intljustice/icc/2001/05icc.htm
(describing the Bush administration's resistance to the ICC); Press Release, Office of U.S.
Representative Ron Paul, Paul Introduces Resolution Opposing International Criminal Court
(February 7, 2001), at http://www.house.gov/paul/press/press2001/pr020701.htm (introducing
HCR 23, a resolution calling for Congress and the President to oppose ICC); Jim Lobe, RightsUS:
Republicans Urge Clinton to Oppose ICC, Inter Press Service, at
http://www.oneworld.org/ips2/jul98/22_32_097.html (July 23, 1998).
171. According to Black's Law Dictionary, public law consists generally "of
constitutional, administrative, criminal, and international law, concerned with the organization
of the state, the relations between the state and the people who compose it, the responsibilities
of public officers to the state, to each other, and to private persons, and the relations of states
to one another." BLACK'S LAW DICTIONARY 1230 (6th ed. 1990). Private law, in contrast,
is defined as "[t]hat portion of the law which defines, regulates, enforces, and administers
relationships among individuals, associations, and corporations." Id. at 1196. As Robert Post
has pointed out, however, this distinction is difficult to maintain in light of the American legal
realist critique challenging the so-called public/private distinction. See Robert Post, The
Challenge of Globalization to American Public Law Scholarship, 2 THEORETICAL INQUIRIES
L. 323, 324 (2001) (noting that "legal realists relentlessly demonstrated that rules of `private'
40
jurisdiction would be limited only to the most serious crimes, such as war
crimes and crimes against humanity.168
Further, the Court is intended to
function only in cases where there is little or no prospect of offenders being
duly tried in national courts.169
Nevertheless, the ICC clearly represents
another step along the path away from the national sovereignty paradigm
that has traditionally dominated international relations.170
J. The Challenge of International Trade
We can see similar incursions to traditional ideas of nation-state
sovereignty in the area of international commercial relations. Indeed,
although this field is often called "private international law," international
trade issues are increasingly seen to implicate important societal values such
as environmental protection and labor standards. Therefore, it may be that
the traditional distinction between "public" and "private" international law
should be revisited.171
property actually structured social relations and thus were subject to evaluation in terms of the
social structures they created"). From this perspective, government is always in the background,
regulating social life to establish and maintain the type of "private" relationships deemed
appropriate or desirable. Moreover, such regulation is always directed toward the achievement
of public goals. "All private law therefore ultimately involves `the relations between the state
and the people who compose it.'" Id. (quoting BLACK'S LAW DICTIONARY 1230 (6th
ed.
1990)).
172. See Pacific Fur Seal Arbitration (United States v. Great Britain), reprinted in
1 JOHN BASSETT MOORE, INTERNATIONAL ARBITRATION HISTORY 755-961 (Washington,
Government Printing Office 1898); see also Sands, supra note 31, at 529 (summarizing case).
Until the Shrimp/Turtle case, tribunals had generally followed these same principles. Indeed, as
recently as the early 1990s, the territorial sovereignty doctrine in international trade disputes
seemed alive and well. See General Agreement on Tariffs and Trade Dispute Settlement Panel
Report on U.S. Restrictions on Import of Tuna, 30 I.L.M. 1594, 1616 (Aug. 16, 1991); GATT
Dispute Settlement Panel Report on U.S. Restrictions on Import of Tuna, 33 I.L.M. 839, 890
(June 1994); see also Benedict Kingsbury, The Tuna-Dolphin Controversy, the World Trade
Organization, and the Liberal Project to Reconceptualize International Law, 5 Y.B. INŤL
ENVTL. L. 1 (1994); Torsten H. Strom, Another Kick at the Can: Tuna/Dolphin II, 33
CANADIAN Y.B. INŤL L. 149 (1995); Friedl Weiss, The Second Tuna GATT Panel Report, 8
LEIDEN J. INŤL L. 135 (1995); Stephen Fleischer, The Mexico-U.S. Tuna/Dolphin Dispute in
GATT: Exploring the Use of Trade Restrictions to Enforce Environmental Standards, 3
TRANSNAŤL L. & CONTEMP. PROBS. 515 (1993).
173. See id. at 530.
174. United States-Import Prohibition of Certain Shrimp and Shrimp Products,
Report of the Appellate Body, WTO Doc. WT/DS58/AB/R (Oct. 12, 1998), available at
http://www.wto.org/english/trato_e/dispu_edistab_e.htm (last visited Feb. 8, 2001).
41
Traditionally, international law did not recognize the legitimacy of
public-law-type claims in international commercial disputes. For example,
in 1893, when the U.S. government tried to prevent British fur traders from
trapping seals, arguing that the seals were in danger of extinction, an
international arbitral tribunal overwhelmingly rejected the claim because
there was no basis in international law for the U.S. to apply its standards of
conservation to measures taking place outside its territory.172
Likewise, in
the 19th century there were no international organizations and no permanent
international courts, and if one state refused to submit a trade claim to
arbitration, the possibilities for enforcement were minimal.173
Yet, here too the assumption that national sovereignty trumps other
claims is under attack. Indeed, the same week that Pinochet was arrested
in London, the Appellate Body of the World Trade Organization handed
down a decision that, for the first time, recognized that one country can
have a legitimate legal interest in activities carried out in another country,
at least when those activities are harmful to migratory endangered
species.174
This case arose from a U.S. government decision to ban the
import of shrimp harvested in the waters of India, Malaysia, the Philippines,
and Thailand because the shrimp were being caught in such a way that sea
turtles were being incidentally killed. The four Asian countries objected to
the U.S. ban, arguing that it violated W.T.O. free trade rules. Contrary to
the decision in the seal case, the W.T.O. Appellate Body ruled that the U.S.
measures were "provisionally justified" because the U.S. had a legal
175. United States-Import Prohibition of Certain Shrimp and Shrimp Products,
Report of the Appellate Body, P 187, WTO Doc. WT/DS58/AB/R (Oct. 12, 1998), available
at http://www.wto.org/english/trato_e/dispu_edistab_e.htm (last visited Feb. 8, 2001).
176. Sands, supra note 31, at v535.
177. See Sea Turtle Conservation; Shrimp Trawling Requirements, 52 Fed. Reg.
24244 (June 29, 1987) (to be codified at 50 C.F.R. pt. 222).
178. See Earth Island Institute v. Christopher, 913 F. Supp. 559 (Ct. Inťl Trade
1995); Earth Island Inst. v. Christopher, 922 F. Supp. 616 (Ct. Inťl Trade 1996); Earth Island
Inst. v. Christopher, 942 F. Supp. 597 (Ct. Inťl Trade 1996); Earth Island Inst. v. Christopher ,
948 F. Supp. 1062 (Ct. Inťl Trade 1996).
179. For a description of the process in Spain and links to Spanish official documents
related to the Pinochet case, see http://www.diplomatiejudiciaire.com/Chili/Pinochet.htm &
http://www.derechos.org/nizkor/chile/juicio/eng.html. See also generally PINOCHET PAPERS,
supra note 28.
180. See generally Report of Apparel Industry Partnership Workplace Code of
C o n d u c t , a v a i l a b l e a t
http://www.dol.gov/dol/esa/public/nosweat/partnership/report.htm#WORKPLACE (last visited
Sept. 23, 2001).
181. See generally TRUSTe, at http://www.truste.org/consumers/users_how.html (last
visited Feb. 4, 2002).
42
interest in the protection of the sea turtles.175
In other words, as in the
human rights cases, there is increasing recognition that "what one state does
or permits to be done within its territory can be of legitimate interest in
another state, however distant."176
Not only does this decision represent a change in the way we
conceive of state sovereignty, it is also significant that this case (and most
of the human rights cases discussed previously) originated not with actions
taken by the executive branch of a sovereign state, but with non-state
actors. Thus, in the "Shrimp/Turtle" case, the U.S. export restrictions at
issue177
were the result of legal proceedings initiated in federal courts by the
Earth Island Institute, a non-governmental organization.178
In the Pinochet
case, the extradition request was the result of investigation and charges
initiated by a judge based on a complaint brought by non-state actors.179
We can see similar efforts of non-state actors in other contexts as
well. For example, the Apparel Industry Partnership, a joint undertaking of
non-governmental organizations (NGOs), international clothing
manufacturers, and American universities, has established its own quasigovernmental
(but non-state) regulatory regime to help safeguard public
values concerning international labor standards. The Partnership has
adopted a code of conduct on such issues as child labor, hours of work, and
health and safety conditions, along with a detailed structure for monitoring
compliance (including a third-party complaint procedure).180
In the Internet
context, the "TRUSTe" coalition of service providers, software companies,
privacy advocates, and other actors has developed (and monitors) widely
adopted privacy standards for websites.181
Similarly, the Global Business
Dialogue on Electronic Commerce has formed a series of working groups
to develop uniform policies and standards regarding a variety of e-
182. See http://www.gbde.org.
183. See, e.g., Michael Mann, Nation-States in Europe and Other Continents:
Diversifying, Developing, Not Dying, DDALUS 115, Vol. 122, No. 3 (Summer 1993).
43
commerce issues.182
And, of course, the Internet Corporation for Assigned
Names and Numbers, discussed previously, is a non-state governmental
body administering the domain name system.
******
I do not mean to suggest that any of the challenges surveyed in this
section are unsolvable. Nor do I argue that these challenges, even taken
together, mean that nation-states are on an inevitable path toward
irrelevance or dissolution.183
Indeed, in the next section, I will provide an
overview of various approaches that have been advanced to meet these
challenges.
Nevertheless, although this tour through the contemporary legal
landscape has necessarily been brief, it should lead even the most skeptical
observer to believe that the challenges discussed are real ones that require
our attention. Moreover, all the challenges have in common a tendency to
complicate or unsettle our traditional assumption that the world order is and
must be based on the idea of territorially-based state sovereignty and fixed,
impermeable borders. And if that is true, then this moment of unsettledness,
when we are struggling to adapt to changes across a wide variety of
doctrinal areas, is an opportunity to rethink the assumption rather than
simply try to stabilize it.
II. Ten Responses
For those scholars, judges, and policymakers who have confronted
cyberspace legal issues during the past decade, the ten challenges discussed
in the previous section are not new. To the contrary, numerous articles,
judicial decisions, and domestic and international legislative and
administrative bodies have wrestled with these challenges, and the debate
about appropriate responses has been robust. In this Part, I identify ten
responses that appear to have received the most attention, summarize each
of the arguments, and briefly describe some of the criticisms most often
raised about each response. Significantly, however, though both the
responses and the criticisms are widely varied, they are primarily grounded
either in political philosophy and its abstract conceptions of sovereignty and
democratic models of governance, or legal policy analysis, which focuses
on the development of effective and efficient rules. None attempts to
explore in detail either the social meaning of jurisdiction or the multiple
conceptions of space, borders, and community allegiance that people
184. Even David Johnson and David Post, who come the closest, focus mostly on
jurisdiction as an issue primarily concerning the legitimate scope of sovereignty as a matter of
political philosophy and efficient organization. See infra, text accompanying notes 185-201.
185. See Johnson & Post, Law and Borders, supra note 8 (arguing that cyberspace
is a unique "space" and cannot be governed by laws that rely on traditional territorial borders,
instead requiring creation of a distinct and separate doctrine to be applied to cyberspace); see
also David G. Post and David R. Johnson, "Chaos Prevailing on Every Continent": Towards A
New Theory of Decentralized Decision-Making in Complex Systems, 73 CHI.-KENT L. REV.
1055 (1998) (using a problem-solving dilemma to argue in favor of decentralized decisionmaking
over the Internet); David G. Post, Governing Cyberspace, 43 WAYNE L. REV. 155
(1996) (arguing that the nature of Internet destroys the significance of physical location,
eliminating the possibility of a single, uniform legal standard); David G. Post, Anarchy, State,
and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. ONLINE L., at 3 (examining
the various groups and organizations that can impose substantive rules on the Internet and
arguing that the lack of physical borders in cyberspace prevents effective rule-making by
centralized governments); David G. Post, Of Black Holes and Decentralized Law-Making in
Cyberspace, 2 VAND. J. ENT. L. & PRAC. 70 (2000) [hereinafter Post, Black Holes] (applying
theory of decentralized law-making to the regulation of junk e-mail); David G. Post, The
"Unsettled Paradox": The Internet, the State, and the Consent of the Governed, 5 IND. J. OF
GLOBAL LEGAL STUD . 521 (1998) (using the dilemma of Internet governance to question
legitimacy of a centralized state).
186. Johnson & Post, Law and Borders, supra note 8, at 1402. Others have
expressed similar skepticism about the ability of territorial sovereigns to regulate cyberspace,
at least in traditional forms. See James Boyle, Foucault in Cyberspace: Surveillance,
Sovereignty, and Hardwired Censors, 66 U. CINC. L. REV. 177 (1997) (recognizing the
difficulties states have in regulating the global network, but arguing that certain private filtering
and control mechanisms will ultimately facilitate far greater state regulation); Joel R.
Reidenberg, Governing Networks and Rule-Making in Cyberspace, 45 EMORY L. J. 911 (1996)
(arguing that the transnational nature of the Internet requires governance by a collection of
state, business, technical, and citizen forces); John T. Delacourt, Note, The International Impact
of Internet Regulation, 38 HARV. INŤL L. J. 207 (1997) (contending that national regulation
of the Internet is inappropriate and that a consensual regime of user self-regulation should be
adopted).
44
experience on the ground and that might complicate the governance models
being discussed.184
Thus, although many arguments for and against the
various strategies are outlined here, the debates are being waged within an
overly limited field of analysis. Neither the responses nor the critiques they
have engendered go far enough in articulating a rich descriptive account of
jurisdiction in a global era.
A. E Pluribus Cyberspace
David Johnson and David Post were among the first legal scholars
to think seriously about the issues of jurisdiction and sovereignty in
cyberspace. Since 1996 they have staked out a simple but radical position.
They argue (both in co-authored articles and in articles written by Post
alone)185
that cyberspace should be deemed a distinct "place" for purposes
of lawmaking sovereignty, and that the law applicable to interactions and
transactions in cyberspace "will not, could not, and should not be the same
law as that applicable to physical, geographically-defined territories."186
187. Supra note 185.
188. Id. at 158. For this proposition, Post cites the Restatement (Third) of Foreign
Relations Law of the United States § 201 (1987) ("Under international law, a state is an entity
that has a defined territory and a permanent population, under the control of its own
government . . . .") and MALCOLM N. SHAW, INTERNAT I O N A L LAW 277-314 (3d ed. 1991)
("International law is based on the concept of the state [which] in its turn lies upon the
foundation of sovereignty [which itself] is founded upon the fact of territory. Without
territory, a legal person cannot be a state."). See Post, Governing Cyberspace, supra note 185,
at 158, n.10. Nevertheless, this vision of sovereignty may be overly simplistic. See, e.g.,
Henry Perritt, The Internet as a Threat to Sovereignty? Thoughts on the Interneťs Role in
Strengthening National and Global Governance, 5 IND. J. GLOBAL LEGAL STUD. 423 (1998)
(arguing that the "Internet as a threat to sovereignty" thesis only threatens a "Realist" theory
of international relations, not the "liberal tradition of international relations" that already
accounts for the interaction of non-state actors across borders; see also, e.g., Anne-Marie
Slaughter, Liberal International Relations Theory and International Economic Law, 10 AM. U.
J. IN ŤL L. & POĽY 717 (1995) (distinguishing the liberal theory of international relations
from realism, which assumes "that the primary actors are states, and define states as monolithic
units identifiable only by the functional characteristics that constitute them as states"). The
question of how we might complicate the concept of sovereignty will be taken up later in this
article.
189. Post, Governing Cyberspace, supra note 185, at 159.
190. Id. at 160.
191. Id. at 161.
45
Thus, they contend that cyberspace should be its own jurisdictional entity.
Given the onslaught of territorially-based regulation in cyberspace, this idea
seems almost quaint a mere six years after it was written. Nevertheless,
the set of concerns Johnson and Post articulate still haunt the cyberspace
regulatory landscape.
Posťs article, Governing Cyberspace187
summarizes what I am
calling the "e pluribus cyberspace" view quite nicely. Post starts with the
question: When is it legitimate for a court, or a territorial sovereign to
exercise jurisdiction over someone? His answer is that law-making
sovereignty is defined by control over physical territory.188
Starting from this premise, Post then argues that cyberspace
destroys the significance of physical location in three ways. First, he notes,
events in cyberspace do not merely cross geographical boundaries the way
pollution does; they "ignore the existence of boundaries altogether."189
For
example, "the cost and speed of message transmission from one point on
the net to any other is entirely independent of physical location: messages
can be transmitted between physical locations without any distance- or
location-based degradation, decay, or delay." Second, even if in some
cases there are physical connections to a geographical locality, such as a
server, many cyberspace transactions "consist of continuously changing
collections of messages that are routed from one network to another across
the global net, with no centralized location at all."190
Third, Post argues that
it is incoherent to discuss physical location with respect to cyberspace
because "the net enables simultaneous transactions between large numbers
of people who do not and cannot know the physical location of the other
party."191
Moreover, according to Post, even if one tried to premise
192. See supra text accompanying note 79. American courts elaborating a test for
minimum contacts in cyberspace have also attempted to construct an effects test. See infra,
text accompanying notes 368-376.
193. Id. at 162.
194. Johnson & Post, Law and Borders, supra note 8, at 1378.
195. Id.
196. See id. at 1380-87 (applying theory to various substantive areas of cyberspace
regulation).
197. See id. at 1396-1400 (arguing for the development of distinct rule-sets in
cyberspace).
198. Post, Anarchy, State, and the Internet, supra note 185.
199. See Post, Governing Cyberspace, supra note 185, at 169; see also Post, Black
Holes, supra note 185, at 70-73 (applying his approach to the problem of junk e-mail).
46
jurisdiction on whether an act had a substantial effect within a particular
state's territory (as Italy's highest court has attempted),192
the formulation
is incoherent because "[t]he effects of cyberspace transactions are felt
everywhere, simultaneously and equally in all corners of the global
network."193
The problem, Johnson and Post contend, is that "[t]raditional legal
doctrine treats the Net as a mere transmission medium that facilitates the
exchange of messages sent from one legally significant geographical
location to another, each of which has its own applicable laws."194
Instead,
"[m]any of the jurisdictional and substantive quandaries raised by bordercrossing
electronic communications could be resolved by one simple
principle: conceiving of cyberspace as a distinct `place' for purposes of
legal analysis by recognizing a legally significant border between
Cyberspace and the `real world.'"195
Thus, they argue for the creation of
an indigenous law of cyberspace. According to Johnson and Post, such a
law not only would sidestep most of the territorial dilemmas we encountered
in the previous section; it would also allow for new law to develop that
would take into account many of the distinctive features of online
interaction.196
Finally, Johnson and Post summon a radically decentralized vision
of law formation and enforcement wherein cyberspace will be its own selfregulating
jurisdiction.197
In his subsequent article, Anarchy, State, and the
Internet,198
for example, Post argues that communities in cyberspace will
be governed by "rule-sets." These rule-sets are the underlying restrictions
on behavior that are either promulgated in a contractual document (such as
America Online's Terms of Service Agreement) or embedded in the
architecture of the website (such as a screen that prevents the user from
accessing information unless personal information or a credit card number
is provided). Post envisions a kind of free market in law,199
whereby users
will "vote" with their browsers and only frequent those parts of cyberspace
with rule-sets to their liking. Thus, one could easily opt out of the "law" of
eBay and go somewhere else. Similarly, if AOĽs terms of service are
distasteful, other ISPs are available. In Posťs view, this will mean that
"[t]he `law of the Interneť...emerges, not from the decision of some higher
200. Post, Governing Cyberspace, supra note 185, at 167.
201. See Johnson & Post, Law and Borders, supra note 8, at 1391-95.
202. See Boyle, supra note 186.
203. See generally JO H N AUSTIN, T HE PROVINCE OF JURISPRUDENCE
DETERMINED (Isaiah Berlin et. al. eds., 1954).
204. See, e.g., Shanthi Kalathil & Taylor C. Boas, The Internet and State Control in
Authoritarian Regimes: China, Cuba, and the Counterrevolution, CARNEGIE ENDOWMENT
FOR INŤ L PEACE W ORKING PAPER (July 2001); Freedom of Expression and the Internet in
China, HUM. RTS. WATCH BACKGROUNDER (Summer, 2001); Chen May Yee, Internet
Companies Increasingly Practice Self-Censorship as They Open Offices in Asia, ASIAN W ALL
ST. J. (June 22, 2001) at N1.
205. See generally MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF
THE PRISON (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (exploring how the
eighteenth-century development of the panopticon prison architecture, with its centralized and
omniscient gaze, pervaded the mass psyche by conditioning individuals to internalize discipline
and behave as if the authoritative, punitive gaze were always watching them).
206. See generally LESSIG, supra note 230; Boyle, supra note 186; see also Alan
Hunt, Foucaulťs Expulsion of Law: Toward a Retrieval, 17 L. & SOC. INQ. 1, 8 (describing
Foucaulťs belief that law--understood as centralized juridical state power--had lost its
importance in modernity and had been eclipsed by power that is specific, local, fragmentary, and
dispersed).
47
authority, but as the aggregate of the choices made by individual system
operators about what rules to impose, and by individual users about which
online communities to join."200
And, to the extent necessary, territorial
sovereigns would enforce cyberspace law as a matter of comity.201
The e pluribus Cyberspace view is provocative, and we all owe a
great debt to Johnson and Post for forcing us to grapple with the dilemmas
they identify. Nevertheless, their approach is problematic in several
respects.
First, they appear to have severely underestimated the ability of
territorially-based sovereigns to regulate cyberspace. Indeed, their implicit
vision of the state and how it exercises power seems unduly limited. As
James Boyle has pointed out,202
their cyber-libertarian approach only makes
sense if one has an "Austinian"203
positivist vision of the lumbering state
asserting sovereign prerogatives only by enacting laws and arresting people
who disobey them. From that perspective, perhaps, states may face
difficulties regulating cyberspace (though given the recent success of
authorities in China and elsewhere to censor online content,204
states may
have maintained even this type of regulatory power). But that is not the
only (or even the most effective) way in which states regulate. Boyle (and
Lawrence Lessig) posit a more subtle "Foucauldian"205
view, whereby
government regulates by changing the architecture of the space itself.206
Thus, by affecting how the "code" of cyberspace is constructed,
governments might well be able to control online behavior even more
effectively than they control behavior in the "real world."
Second, even as a matter of political theory, the Johnson and Post
conception of sovereignty as necessarily tied to physical power and
territorial boundaries may be overly simplistic. As we will see later in this
207. See Part IV, infra.
208. See Patricia Fusco, Top U.S. ISPs by Subscriber: Q2 2001--Market Insights
( A u g . 1 7 , 2 0 0 1 ) , a v a i l a b l e a t h t t p : / / w w w . i s p planet.com/research/rankings/usa_history_q22001.html
(indicating that AOĽs market share
in the United States is one-third and that it would take a combination of United Online,
EarthLink and MSN to rival AOĽs current market share). As a practical matter, for most
consumers switching costs may also be more burdensome than Johnson and Post assume.
209. See, e.g., Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8
(1927); Robert L. Hale, Force and the State: A Comparison of "Political" and "Economic"
Compulsion, 35 COLUM. L. REV. 149 (1935); see also generally BARBARA H. FRIED, THE
PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LA W A N D
ECONOMICS MOVEMENT (1998).
210. See, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 242-68
(1987); Kenneth M. Casebeer, Toward a Critical Jurisprudence--A First Step By Way of the
Public-Private Distinction in Constitutional Law, 37 U. MIAMI L. REV. 379 (1983); Clare
Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, 1010-13
(1985); Duncan Kennedy, Stages of the Decline of the Public/Private Distinction, 130 U. PA.
L. REV. 1349, 1349-50 (1982); Frances E. Olsen, The Myth of State Intervention in the Family,
18 U. MICH. J. L. REFORM 835 (1985). Gary Peller, The Metaphysics of American Law, 73
CAL. L. REV. 1151, 1219-59 (1985).
48
Article, other theories challenge this conception.207
Third, their vision of competing rule-sets makes sense if, and only
if, alternative rule-sets are always available. For example, it is all well and
good to say that a user who does not like AOĽs Terms of Service can go
elsewhere. But if there are no other Internet service providers or (more
realistically) if all other providers with similar capabilities to AOL also have
the same terms of service, the rule-set competition is meaningless.208
Johnson and Post seem to assume that, in cyberspace, the cost to start a
competing service or website will always be low enough that options will
continue to be available. This assumption may or may not be true,
particularly as the online market becomes dominated by large multinational
content providers that may effectively monopolize a given market. Johnson
and Post might argue that antitrust laws would prevent such accretion of
market power, but then the state (or perhaps multiple states) must be
involved in the regulation of anti-competitive activities in cyberspace, which
Johnson and Post wish to avoid.
Finally, the need for antitrust enforcement illustrates a larger
problem underlying Johnson and Posťs libertarian approach. They appear
to assume that some state will be there to enforce underlying background
rules, most particularly rules of contract and property. Both the legal
realists, in their attacks on laissez-faire in the 1920s and 1930s,209
and
members of the Critical Legal Studies movement, in their efforts to
challenge the public-private distinction,210
however, have repeatedly argued
that this sort of assumption undermines the whole idea of "private ordering"
because it presupposes a "public" regime of enforcement and policing as
well as a baseline of background rights. If so, then the Johnson and Post
scheme will run into the very jurisdictional problems they seek to avoid
because territorial sovereigns will inevitably be called upon to establish and
211. For a further discussion of the public-private distinction with respect to
cyberspace, see generally Paul Schiff Berman, Cyberspace and the State Action Debate: The
Cultural Value of Applying Constitutional Norms to "Private" Regulation, 71 U. COLO. L. REV.
1263 (2000); Margaret J. Radin & R. Polk Wagner, The Myth of Private Ordering:
Rediscovering Legal Realism in Cyberspace, 73 CHI.­KENT L. REV. 1295, 1295 (1998).
212. See, e.g., Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of
Contract, 12 BERKELEY TECH. L.J. 93 (1997); William W. Fisher III, Property and Contract
on the Internet, 73 CHI.-KENT L. REV. 1203 (1998); Michael J. Meurer, Price Discrimination,
Personal Use, and Piracy: Copyright Protection of Digital Works, 45 BUFF. L. REV. 845
(1997); Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management
on Copyrighťs Fair Use Doctrine, 76 N.C. L. REV. 557 (1998); Raymond T. Nimmer, Breaking
Barriers: The Relation Between Contract and Intellectual Property Law, 13 BERKELEY TECH.
L.J. 827 (1998); Julie E. Cohen, Copyright and the Jurisprudence of Self-Help, 13 BERKELEY
TECH. L.J. 1089 (1998); David Friedman, In Defense of Private Orderings: Comments on Julie
Cohen's "Copyright and the Jurisprudence of Self-Help", 13 BERKELEY TECH. L.J. 1151
(1998); Maureen A. O'Rourke, Copyright Preemption After the ProCD Case: A Market-Based
Approach, 12 BERKELEY TECH. L.J. 53 (1997); Julie E. Cohen, Copyright and the Perfect
Curve, 53 VAND. L. REV. 1799 (2000) (hereinafter Cohen, Perfect Curve); James Boyle, Cruel,
Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property,
53 VAND. L. REV. 2007, 2025 (2000).
49
enforce those background rights. Although a detailed discussion of this
long-standing public-private debate is far beyond the scope of this Article,
it is worth recognizing that the issue resurfaces in the context of
cyberspace.211
B. Coase in Cyberspace
The Johnson and Post approach assumes that contract law
increasingly will become the primary law of cyberspace. Although not
embracing all of Johnson and Posťs vision, a number of other scholars have
similarly argued that the best response to the conundrums of cyberspace
governance is to rely on the fact that cyberspace can reduce both
transaction costs and barriers to entry and exit, thereby enabling a more
perfect Coasean world. Such a world, premised on contractual relations,
seems to offer a way around jurisdictional puzzles by allowing parties to
construct their own legal relations, opt for a particular set of legal rules, and
designate the forum of their choice for dispute resolution.
Nevertheless, this vision has been controversial because it does not
provide sufficient space for public, non-contractual values. The battle has
been particularly fierce in the field of intellectual property.212
Increasingly,
the creators of intellectual products are relying less on traditional intellectual
property regimes to enable them to limit access to their material, and more
on a combination of contractual rights and technological protections.
For example, if I purchase a book from a bookstore, American
copyright law grants me various entitlements. Under the so-called "first
sale" doctrine, I can sell it to a used bookstore or give it to a friend to
213. See 17 U.S.C. §109(a) (1994). For a discussion of the history of the first sale
doctrine and concerns that the doctrine may be overly restricted in the digital environment, see
generally JESSICA LITMAN, DIGITAL COPYRIGHT 81-83 (2001).
214. Fair use, which began life as a judge-made defense to copyright infringement,
is now statutorily recognized under U.S. law. See 17 U.S.C. §107 (1994).
215. For example, the U.S. Supreme Court made clear that, in order to serve both
First Amendment goals and the Copyright Clause's stated objective of "promot[ing] the
progress of science and the useful arts," U.S. CONST., ART. I §8, CL. 8, copyright doctrine
"assures authors the right to their original expression, but encourages others to build freely upon
the ideas and information conveyed by a work." Feist Pubľns v. Rural Tel. Serv. Co., 499 U.S.
340, 349-50 (1991). This conception underlies the traditional copyright distinction between
ideas, which are not copyrightable and the expressions of those ideas, which are copyrightable,
see Baker v. Selden, 101 U.S. 99 (1879), as well as the doctrine that expression must have a
"modicum" of originality in order to be protected. Feist, supra, at 345 ("Originality remains
the sine qua non of copyright."). Whether these doctrines sufficiently protect First
Amendment values is debatable. See, e.g., Neil Weinstock Netanel, Locating Copyright Within
the First Amendment Skein, 54 STAN. L. REV. 1 (2001) (arguing that copyright doctrines must
be subjected to independent First Amendment scrutiny).
50
read.213
Likewise, under the fair use doctrine, I can create my own parody
of the book, or excerpt passages for critical or educational use.214
And
there are various other copyright doctrines that aim to strike a balance
between granting incentives to copyright holders and allowing the broadest
possible dissemination of information.215
If the same book were down-loaded in electronic format, however,
the set of entitlements could well be different. Thus, the copyright holder
could provide me with a copy of the book only if I agree to various
conditions. And these conditions could be unrelated to the rights that users
hold under copyright law. For example, I could be required to agree to
purchase my electronic copy on the condition that I neither give it to a friend
nor sell it to a third party. Such concessions would be extracted through a
license whereby I would be required to "click" an icon indicating agreement
to a set of terms.
So far, nothing about the Internet context has substantially changed
the analysis. After all, the bookstore theoretically could have made the
same demands. But with an electronic version, individualized agreements
are more feasible because transaction costs are lower. Even more
significant, technology increasingly makes it possible for the owner actually
to enforce such agreements. For example, the electronic file could be
encoded with information that would make it impossible for me to distribute
it electronically to someone else without paying additional money. Or, it
could be coded so that the product can be used only a prescribed number
of times or for a prescribed period of time.
Such agreements, and the technology to enforce them, would be
governed by contract law, not copyright law. Thus, a coded work could
prevent me from electronically excerpting a passage even if it were for
scholarly or educational purposes. My "fair use" rights under copyright law
would be irrelevant because the contract would be enforced through
technological self-help. According to one commentator:
216. Boyle, supra note 186, at 2025 (2000).
217. See 17 U.S.C. §1201 (Supp. V, 1999). Critics have argued that the Digital
Millennium Copyright Act has overly enhanced the ability of copyright owners to wield
electronic protective measures to control new kinds of exploitation of their works. See, e.g.,
LITMAN, supra note 213, at 81-86 (describing overexpansion of copyright through examples
of the repeal of first sale doctrine, contraction of privilege of fair use, and expansion of notion
of "piracy" with advent of Internet technology); Julie E. Cohen, WIPO Copyright Treaty
Implementation in the United States: Will Fair Use Survive?, 21 EUR. INTELL. PROP. REV.
236, 237-38 (1999) (arguing that the Act will likely improperly narrow the fair use doctrine);
Robert C. Denicola, Freedom to Copy, 108 YALE L.J. 1661, 1683-86 (1999) (expressing
concern about recent expansion of private rights in copyright law); Robert C. Denicola, Mostly
Dead? Copyright Law in the New Millennium, 47 J. COPYRIGHT SOC'Y USA 193, 204-07
(2000) (arguing that balance between incentive for copyright holders and public access has
shifted towards "a free market in property rights rooted in the natural entitlement of creators");
L. Ray Patterson, Understanding the Copyright Clause, 47 J. COPYRIGHT SOC'Y USA 365,
387-89 (2000) (arguing that Congress inappropriately granted a "natural law monopoly" in the
Act "comprised of rights for the creator to the exclusion of any duties"); Pamela Samuelson,
Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need
to be Revised, 14 BERKELEY TECH. L.J. 519, 566 (1999) (arguing that certain provisions of
the Act are overbroad and warning of its "potential for substantial unintended detrimental
consequences"); Yochai Benkler, The Battle Over the Institutional Ecosystem in the Digital
Environment, COMM. OF THE ACM, Feb. 2001, at 84, 86 (arguing that "the expansion of
exclusive private rights in information tilts the institutional ecosystem within which
information is produced against peer production and in favor of industrial production"). But see,
e.g., Jane C. Ginsburg, Copyright and Control Over New Technologies of Dissemination, 101
COLUM. L. REV. 1613, 1616-17 (2001) (arguing that proper "resolution of tensions between
the exercise of control under copyright on the one hand and the availability of new technology
on the other... notwithstanding current critiques, supports a continued role for control in a new
technological environment" and suggesting that the logic underlying the act "is consistent with
earlier approaches to copyright/technology conflicts").
218. See, e.g., Fisher, supra note 212
51
Programs might be tied to unique identifier numbers
embedded in software or hardware. Content providers will
declare that content is not being "sold," merely licensed
subject to numerous restrictions. Self-help sub-routines
might be used to encrypt user-files in the event of
contractual violation, with the key only being provided on
payment of a fee and a return to proper behavior. Digital
fingerprints and watermarks will help identify texts.
Encryption will be used to protect programs against
decompilation, or to scramble source code so that it cannot
be parsed.216
Moreover, although theoretically I could develop a tool to circumvent the
protection, the controversial Digital Millennium Copyright Act makes such
circumvention (even for fair use purposes) a crime.217
There are, of course, certain advantages to a contractarian system
such as this. Most significantly, scholars have pointed out that content
providers, armed with technological protection, could engage in finelygrained
price discrimination, which might permit more people to access
material at a price closer to what they are able to afford.218
The analysis
219. Julie Cohen, Copyright and the Perfect Curve, 53 VAN D . L. REV. 1799, 1804
(2000).
220. Id. at 1809.
52
proceeds like this. Assume there is a book that person A values at $10,
person B values at $20, and person C values at $30. If the book is priced
at $20, B and C will buy it, but A will not. The producer has lost $20 that
might have been reaped from the sale: the $10 A would have spent, as well
as the additional $10 C would have been willing to pay. In addition, A will
not be able to buy the book, which we might see as a social loss. If,
however, the producer were able to identify these individual valuations and
could charge different prices to different customers, both the producer's
loss and the social loss would disappear. Now, C would be charged the full
$30, and A could get the book for $10.
Of course, this hypothetical scenario assumes that a producer
would be able to determine various buyers' actual valuations. Historically,
one way of doing so has been by creating a variety of different versions of
a product with different price points. Some versions may have stripped
down features. Some versions simply may be available sooner. The
methods can also be combined: hardcover books are generally distributed
first at a higher cost, and lower-cost paperbacks are distributed some time
later.
Obviously, these mechanisms result in only rough approximations.
Even more significantly, there is nothing to prevent a secondary used book
market from developing, which can skew the price discrimination altogether.
Thus "effective price discrimination requires restrictions on transfer of the
work to other users; price discrimination will not work if high-value
arbitrageurs can obtain low-cost access from redistributors."219
Accordingly, advocates of such a contractarian approach argue that
copyright owners need to be able to contract around some of the ground
rules of copyright law. Indeed, they argue that there will be greater access
to information and more incentive to create if contract is allowed free reign.
There are at least three problems with this approach, however.
First, the contractual price discrimination model may well favor certain
types of new creation over others. For example, fair use of copyrighted
expression would no longer be permitted, and new creation that uses
existing uncopyrightable material would suddenly be subject to licensing
schemes. Second, such a model assumes that access to information is a
purely private matter implicating concerns only about efficiency and
agreement among parties. However, "licensing decisions designed to
maximize individual or private welfare may not maximize society's."220
Thus, the public as a whole may benefit from access to information that no
one individual would value sufficiently to purchase. Or, even if an individual
purchases the information, it might not be disseminated to others who might
not be able to afford it. Third, online licensing contracts are often not true
221. The proposed Uniform Computer Information Transactions Act ("UCITA")
was formerly draft Article 2B of the U.C.C., until the American Law Institute withdrew its
support. UCITA would enforce these so-called "clickwrap" licenses in the mass-market context
where the licensee manifests assent either before or during the initial use. See Uniform
Computer Information Transactions Act §209 (1999), available at http://
www.law.upenn.edu/bll/ulc/ucita/cita10st.doc. One of the principal points of contention about
both Article 2B and UCITA is that they would make most of their default rules subject to change
by "agreement of the parties," including provisions on choice of law, choice of forum, the
remedies to be awarded, and the implied warranties of noninfringement, merchantability, and
program content. Thus, as Mark Lemley has argued, "a software vendor with a good lawyer can
quite easily enforce virtually whatever terms it likes simply by putting them `conspicuously' in
a multi-page document that the user cannot even see (much less agree to) until after buying,
installing, and beginning to run the software." Mark A. Lemley, Beyond Preemption: The Law
and Policy of Intellectual Property Licensing, 87 CALIF. L. REV. 111, 122 (1999). And,
although there is the possibility of such a contract being deemed unconscionable, that possibility
is relatively remote given courts' reluctance to void contracts as unconscionable.
222. See Angela Doland, French Oppose Yahoo! on Nazi Items, AP, July 24, 2000
("[A]n expert witness called by Yahoo! testified [at today's hearing]...that it would be
technically impossible to keep French cybernauts off the disputed Web sites.").
223. Id.
224. See Tribunal de Grande Instance de Paris, Ordonnance de référé (Aug. 11,
2 0 0 0 ) , a v a i l a b l e a t
http://www.legalis.net/cgi-iddn/french/affiche-jnet.cgi?droite=decisions/responsabilite/ord_tgi-
paris_110800.htm.
225. See Tribunal de Grande Instance de Paris, Document de travail sur le rapport
ďexpertise (Nov. 6, 2000), UEJF et Licra c/ Yahoo! Inc. et Yahoo! France,
http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001106-rp.htm.
53
bargains, but simply click-stream agreements that are entered into by parties
of different bargaining power and sophistication. Indeed, the recent battle
over proposed Article 2B of the Uniform Commercial Code and the
subsequent UCITA has been waged in part over the issue of whether such
contracts should be binding in all circumstances.221
Finally, as discussed
previously, these contractual"solutions" do not actually remove the need for
state intervention because some government must always be in the
background to enforce any contractual agreement.
C. A World of Online Passports
In response to the French lawsuit concerning access to Nazi
memorabilia, Yahoo! argued that it could not feasibly block French users
from accessing the offensive websites without censoring those sites
altogether.222
According to Yahoo, "no existing technology could
effectively keep all French users from seeing" the sites at issue.223
Ultimately, the French court appointed a panel of three experts to test
Yahoo!'s technical argument.224
The panel estimated that, for approximately 70 percent of those
accessing the Web from France, the Internet Protocol (IP) address of the
user is associated with a French Internet service provider and can be
filtered accordingly.225
The IP addresses for French users of America
226. See id.
227. See id.
228. See id.
229. See id.
230. This example is drawn from LAWRENCE LESSIG, CODE AND OTHER LAWS
OF CYBERSPACE 57 (1999).
231. See Michael Geist, E-borders Loom, for Better or Worse, TORONTO GLOBE &
M A I L , ( J u n e 2 8 , 2 0 0 1 ) , a v a i l a b l e a t
http://www.globetechn...neutral&slug=TWGEISY&date=20010628; We Know Where You Live,
F O R B E S . C O M ( N o v . 1 3 , 2 0 0 0 ) , a v a i l a b l e a t
www.forbes.com/global/2000/1113/0323130a_print.html; Stephanie Olsen, Geographic
Tracking Raises Opportunities, Fears, CNET NE W S.COM (Nov. 8, 2000), available at
http://news.cnet.com/news/0-1005-200-3424168.html.
232. See, e.g., LESSIG, supra note 230, at 49-53.
233. See Olsen, supra note 231 ("[A] traditional retailer such as Banana Republic
could hawk swimming suits to Web visitors from Los Angeles as it pushes parkas to online
shoppers in New York.").
234. See Geist, supra note 231 ("[N]ational and global Web sites may now use
geographic identification technology to guarantee advertisers that their ads will only be
displayed to a local audience.").
54
Online, however, would appear to originate in Virginia, where the
headquarters of AOĽs network is located.226
Similarly, IP addresses on
the private networks of large corporations might indicate the location of the
server rather than the user.227
Finally, the panel noted that users could
actively conceal their location by using anonymization sites that replace the
user's IP address with a different one from another location.228
Thus, the
panel concluded that 100 percent geographical identification was
infeasible.229
Nevertheless, the French court, in imposing its order, appeared to
embrace the position that, even if Yahoo! could not block all French users
from sites displaying Nazi memorabilia, enough users could be identified so
as to make the judgment effective. Thus, although for years cyberlibertarians
have argued that cyberspace is unregulatable by geographicallybased
sovereigns, the Yahoo! decision reflects the idea that even if perfect
regulation is impossible, such regulation can still be effective enough. After
all, the fact that locks can be picked does not render locks useless as
regulatory devices.230
Moreover, the technology to zone cyberspace based on physical
geography is rapidly improving. In the past several years, companies such
as DoubleClick, Akamai, NetGeo, Digital Island, Quova, and Digital Envoy
have been racing to compile databases that match up the 4.3 billion possible
Internet locations with actual locations.231
Significantly, although
commentators initially warned that governments might try to imposea digital
identification requirement on cyberspace,232
it appears to be not government
but private industry that is leading the charge. For businesses, geographical
tracking permits marketing campaigns tailored to customers in specific
locations233
and the ability to sell more targeted advertising.234
Nevertheless, once the technology exists, government regulators may insist
235. See National Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d 1831
(W.D.Pa. 2000); see also John Borland, Broadcasters Win Battle Against iCraveTV.com, CNET
NEWS.COM (Jan. 28, 2000), available at http://news.cnet.com/news/0-1004-200-1535528.html.
236. Because the suit was ultimately decided under U.S. law and then settled, this
contention was never tested. For a discussion of the Canadian law with regard to this case, see
Michael A. Geist, ICraveTV and the New Rules of Internet Broadcasting, U. OF ARK. AT
LITTLE ROCK L. REV. 223, 225-37 (2000).
237. See National Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d 1831, 1834
(W.D.Pa. 2000).
238. See id. at 225-26 (noting that "this approach was viewed, with some
justification, as rather gimmicky since iCraveTV's own Toronto area code was posted on the
site").
239. See id. at 226.
240. National Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d 1831, 1834-35
(W.D.Pa. 2000).
241. Id. at 1833.
242. See Etan Vlessing, iCraveTV Settles, Wraps Webcast, 361 HOLLYWOO D RE P .,
Feb. 29, 2000, at 4.
243. See Symposium, Panel II: Digital Video, 11 FORDHAM INŤL PROP., MEDIA
& ENT. L. J. 317, 338 (2001) (remarks of Jeffrey Cunard).
55
(just as the French judge in the Yahoo! case did) that sites employ this
technology to enforce local laws.
If geographical tracking technology becomes both more accurate
and more widely used, then it is not hard to envision a cyberworld of digital
passports, where users entering a website are immediately identified by
country (or state, or city, or town, or zip code) and then offered content that
has been zoned for members of that geographical community. In order to
see how this would work, consider a recent legal battle concerning
iCraveTV.com, a Canadian corporation. In 1999, the company began
offering a streaming version of 17 Canadian and American broadcast
television stations online uncut and uninterrupted,235
arguing that such
retransmission was permitted under Canadian copyright law,236
and that the
site was intended for Canadian viewers only.237
Nevertheless, the steps
taken by the site to block access to Americans were trivially easy to
circumvent. First, a potential user was required to enter his or her local
area code. If the area code entered were not a Canadian area code, the
user was denied access to the service.238
Users who negotiated the first
step were then confronted with two icons: "I'm in Canada" and "Not in
Canada" and were asked to click one.239
Ultimately, a federal judge in
Pittsburgh ruled that "acts of [United States copyright] infringement are
committed within the United States when United States citizens received
and viewed defendants' streaming of the copyrighted materials."240
The
judge issued a temporary restraining order against the Internet company,241
which subsequently settled the case242
and later went out of business.243
Since that time, however, a new corporation called JumpTV.com has
announced its intention to launch a similar service in Canada, claiming that
it will use geographic identification technology to insure that only Canadians
244. See generally Ed Hore, JumpTV Wants to Put TV Signals on the Internet, THE
LAWYERS WEEKLY, Jan. 12, 2001; Geist, supra note 231.
245. See Laurie, supra note 71 (arguing that geographical filtering would impose a
tremendous burden on services such as Yahoo!, which would be required "to maintain a huge
matrix of pages versus jurisdictions to see who can and can't see what").
246. See, e.g., Jessica Litman, Privacy and E-Commerce, 7 B.U .J. OF SCI . & T ECH .
L. 223, 225 (2001) (arguing that cases such as Yahoo! and iCraveTV, which give ISPs some
responsibility for controlling access to people in different geographic areas, will exacerbate
privacy concerns because, if an ISP has to know where you are, then there will be greater
incentives to link web profiles with physical locations).
common.
247. See, e.g., Jonathan D. Glater, Hemming in the World Wide Web, N.Y. TIMES
(Jan. 7, 2001) at sec. 4, p. 5 ("A lot of times people are looking for information on the
Internet that they wouldn't want people to know they're looking for.") (quoting Shari Steele,
a lawyer for the not-for-profit Electronic Frontier Foundation).
248. See supra note 230.
56
will be able to access the site.244
In a world of digital passports, a company
like JumpTV could go one step farther and automatically "read" the digital
identification of each user attempting to access the site, even more
effectively blocking access to those without Canadian "identification."
Geographical tracing and digital identification technology therefore
appear to "solve" the problem raised in cases such as Yahoo! and
iCraveTV.com. Using the technology, website operators or Internet service
providers can simply allow access to some users while denying access to
others, based on the geographical location of the user.
Nevertheless, at least three difficulties remain. First, website
operators arguably would be required to monitor continuously the laws of
every jurisdiction in order to determine which users to admit.245
Second, net
users (and regulators) worried about online privacy may balk at technology
that would pierce geographical anonymity and link physical location to other
data, such as the sites that the user visits. Such links might lead to
increased invasion of privacy by marketers,246
but even more ominous is the
possibility that loss of geographical anonymity might make people more
reluctant to visit certain sites, for fear that they may be identified.247
Finally,
if, as in the Yahoo! case, a website operator in the United States refuses to
block French citizens accessing the site, how will France enforce its
wishes? Thus, the jurisdictional puzzle may not be completely solved.
D. You Enforce My Laws, I'll Enforce Yours
Lawrence Lessig in his book, Code and Other Laws of
Cyberspace248
offers a theory of international regulation of cyberspace
activity that attempts to solve the question that the technological response
in the previous suggestion leaves open: even if a website operator could
easily identify the territorial location of each user, what is it that would
compel a website operator to enforce the laws enacted in other
249. See id. at 54-55.
250. Id. at 55.
251. Id. at 55-56.
57
jurisdictions? One answer, of course, is that, at least for commercial site
operators, the desire to operate internationally will exert a strong persuasive
force, as Yahoo!'s "voluntary" capitulation to the French order
demonstrates. Nevertheless, Lessig's approach goes farther than that by
involving governments in a series of reciprocal enforcement arrangements.
Lessig starts by outlining the standard cyber-libertarian argument
that the Net is unregulatable.249
This argument, reminiscent of the JohnsonPost
approach discussed previously, proceeds along the following lines.
Suppose the legislature of New York passes a statute banning online
gambling. In the wake of the legislation, New York's Attorney General
moves to shut down all gambling sites located on servers in New York.
The sites can simply move their servers to Connecticut, and New York
citizens can still access online gambling activities as easily as before. If the
New York Attorney General is persistent, he or she may decide to seek
prosecution in Connecticut as well and may be able to persuade the
Connecticut Attorney General to shut down the servers, even if Connecticut
does not have the same anti-gambling policy as New York. But then the
website operators simply move their servers off-shore, to the Grand
Caymans or the Bahamas, or somewhere else where they will not be
prosecuted. It is still no more difficult for American citizens to gain access
to the gambling sites, and territorial regulation appears to have failed.
Lessig's answer to this dilemma is reciprocal enforcement.
According to Lessig "[e]ach state [or nation] would promise to enforce on
servers within its jurisdiction the regulation of other states for citizens from
those other states, in exchange for having its own regulations enforced in
other jurisdictions."250
Lessig argues that, although states do not necessarily
have the same regulatory goals, they all at least have some goals they wish
to be enforced extraterritorially. Thus, New York may have an interest in
preventing its citizens from accessing gambling sites, while Florida may
have an interest in restricting access to pornography. In Lessig's scheme,
Florida would simply require servers within Florida to block the access of
New Yorkers to gambling sites, in exchange for New York keeping Florida
citizens away from New York servers offering content deemed
impermissible in Florida. According to Lessig, "[w]ith a simple way to
verify citizenship, a simple way to verify that servers are discriminating on
the basis of citizenship, and a federal commitment to support such local
discrimination, we could easily imagine an architecture that enables local
regulation of Internet behavior."251
Indeed, such architecture would be
similar to the online passports discussed in the previous section. Moreover,
Lessig sees this system of reciprocal enforcement operating internationally
as well. Indeed he states, without explanation, that there would be an even
252. See id. at 56.
253. Id. at 56-57.
254. Id. at 57.
58
greater interest in enforcing another jurisdiction's local law internationally
than within one nation.252
Such a system would, as Lessig observes, "dramatically increase
the power of local governments to impose requirements on their citizens."253
Websites would condition access on the presentation of digital certificates,
and rules imposed by local jurisdictions would be enforced by sites
worldwide.
The effect, in short, would be to zone cyberspace based on
the qualifications carried by individual users. It would
enable a degree of control of cyberspace that few have
ever imagined. Cyberspace would go from being an
unregulable space to, depending on the depth of the
certificates in the space, the most regulable space
imaginable.254
Nevertheless, one wonders whether countries would be as quick to
sign up for this kind of mutual enforcement scheme as Lessig imagines.
Take the Yahoo! case, for example. Had Yahoo! not chosen to comply
with the French order, how likely is it that the U.S. government or its courts
would have required Yahoo! to block access to French users? After all, the
American commitment to First Amendment values is quite strong, and any
governmental efforts to help France enforce its order would surely be met
by fierce opposition (and lawsuits) within the United States. Indeed, the
federal district court order declaring the French judgment unenforceable in
the United States articulated such First Amendment concerns as part of its
justification.
Moreover, Yahoo! and other businesses would likely argue that the
zoning scheme Lessig envisions would be costly to enforce even if the
technology to identify users geographically were cheap. As the U.S.
Chamber of Commerce recently argued in an amicus brief filed in Yahoo!'s
U.S. declaratory judgment action:
Technology alone is not the issue.... Under the French
courťs jurisdictional theory...each individual or company
with a presence on the Internet would have to constantly
monitor the laws of every country in the world, search out
content that might be prohibited by one or more of these
countries, and implement some sort of blocking software
that would screen different categories of material from
users in different countries. This would be obviously too
burdensome for even enormous countries like Yahoo!, and
would literally be a death knell for smaller companies and
255. Brief for Chamber of Commerce of the United States, et al. at 6-7, Yahoo! Inc.
v. La Ligue Contre Le Racisme et ĽAntisemitisme, No. 00-21275 (N.D. Ca., filed 12/21/00).
256. See, e.g., Vacco v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (1999)
(prosecution of non-resident corporation and subsidiaries for offering Internet gambling to
residents of New York); Humphrey v. Granite Gates Resorts, Inc., 568 N.W. 2d 715 (1997)
(prosecution of non-resident corporation and its principal for deceptive trade practices, false
advertising, and consumer fraud in connection with an Internet gambling site).
257. See, e.g., Mary Kwang, Internet dreams: China's New Generation, T H E
STRAITS TIMES (SINGAPORE) (July 16, 2001) (quoting a Washington-based official of Human
Rights Watch complaining that "China's attempts to control access to the Internet through
politically-motivated regulations and detentions blatantly violate users' rights to free
expression."); Tougher Regulations on Internet cafes planned, MIDDLE EAST NEWSFILE
(SAUDI ARABIA) (Sep. 9, 2001) (describing regulations on Internet cafes that would bar access
to websites deemed offensive to Islam and the political system); Tan Tarn How, Foreign
Websites that Refuse to Register "Can be Blocked," THE STRAITS TIMES (SINGAPORE) (Sep.
1, 2001), (reporting that Singapore government will block access to foreign websites that do not
register in Singapore as political websites and abide by new laws that limit political campaigning
by websites during an election.).
258. See supra text accompanying notes 137-170.
259. Glater, supra note 247 (quoting William F. Schulz, Executive Director of U.S.
operations for Amnesty International).
260. LESSIG, supra note 230, at 57.
261. Lessig even addresses the reader directly to make this point:
Stop. Don't turn away. I know at least some of the thousands of reasons
59
non-profit organizations.255
Such arguments might well persuade jurisdictions to forego reciprocal
enforcement in many cases.
Finally, as the discussion of the Yahoo! case indicates, there is very
little global consensus about what constitutes appropriate Web material.
France and Germany want to block Nazi sites; states within the U.S. try to
prosecute gambling sites;256
governments in China, Saudi Arabia, Singapore
and elsewhere try to block access to sites for political or religious
reasons.257
While countries may be able to regulate such sites within their
borders, they may well find it difficult to convinceother countries to enforce
those restrictions, even in the reciprocal scheme Lessig envisions.
Moreover, such efforts might run counter to the current trend of increasing
international norm-creation in the human rights area.258
Thus, many would
argue that other nations' "sensitivities should not serve as an excuse to
block sites that promote the protection of human rights."259
Lessig recognizes both that the "architecture" he describes may
never be universally enforced and that some individuals--if they desire it
enough--will probably always be able to avoid technologies of identity.
Nevertheless, he argues that even partial control would have powerful
effects. According to Lessig, "it is as likely that the majority of people
would resist these small but efficient regulators of the Net as it is that cows
would resist wire fences."260
Perhaps then an even more fundamental objection to this approach,
which Lessig himself seems to share,261
is a normative one. A cyberspace
you have for rejecting the structure I've just described. Some of those
reasons are normative--you hate the world I am describing. Or you hate
the idea that cyberspace would become like this world. I do too. I am not
promoting an idea, I am arguing that this is the world we are moving to.
Id. at 56.
262. See, e.g., ANDREW SHAPIRO, THE CONTROL REVOLUTION (1999) 34-37
(describing the way in which the Internet facilitated resistance to a 1995 Time Magazine article
about the availability of pornography online); see also id. at 40-43 (citing Matt Drudge's online
reporting of the Clinton-Lewinsky affair as an example of shifting power away from exclusive
reliance on mainstream news sources).
263. See, e.g., Glater, supra note 247 ("[T]he Web allowed Amnesty International
to get information into China about the Universal Declaration of Human Rights and about
Chinese human rights violations, despite the governmenťs efforts to block them.").
264. See, e.g., John Perry Barlow, Selling Wine Without Bottles: The Economy of
M i n d o n t h e G l o b a l N e t , a v a i l a b l e a t
http://www.eff.org/Publications/John_Perry_Barlow/HTML/idea_economy_article.html (visited
Feb. 4, 2002) ("[A]ll the goods of the Information Age--all of the expressions once contained
in books or film strips or records or newsletters--will exist either as pure thought or something
very much like thought: voltage conditions darting around the Net at the speed of light, in
conditions which one might behold in effect, as glowing pixels or transmitted sounds, but never
touch or claim to `own' in the old sense of the word.").
265. Anthropology article about Environmental movement in Amazon rain forest.
266. As William F. Schulz, Executive Director of Amnesty Internationaľs United
States operations, puts it:
Now it is virtually impossible for a violation to take place, or at least
violations in public, in any part of the world without being known almost
instantaneously around the world. There has been virtually no
development in the last five years that has been any more important to
the success of the human rights movement than the growth of the Web.
Glater, supra note 247.
267. See Henry H. Perritt, Jr., The Internet is Changing the Public International
Legal System, 88 KY. L.J. 885 (1999-2000) ("The Interneťs low economic barriers to entry
provide a voice to political actors who otherwise would be denied effective access to the public
arena. Because the Internet gives them access, and is inherently global, these actors can find
like-minded people in other states, thus enabling them to build political movements across
national lines.").
60
where individuals could only access content that was approved by their
government is a very different cyberspace from the one most people have
experienced until now. Indeed, many of the most highly touted features of
the Internet are a function of its relatively open architecture. Thus,
observers have lauded the Interneťs power (or at least potential) to
democratize where people get their news,262
to make more accessible all
forms of political263
and artistic expression,264
to alert the international
community about environmental265
and human rights abuses266
occurring
anywhere in the world, and to facilitate political organizing.267
Without
these benefits, we may lose some of the attributes that have made the
Internet both so popular and so significant.
268. BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC
WORKS, July 24, 1971, 1161, U.N.T.S. 3 [hereinafter Berne Convention]. The first version
of the Berne Convention was concluded in 1886. See generally SAM RICKETSON, THE BERNE
CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC W ORKS: 1886-1986
(1987) (tracing the development of the Berne Convention).
269. See HAGUE CONFERENCE ON PRI V A T E INTERNATIONAL LA W ,
PRELIMINARY DRAFT CON V E N T I O N O N JURISDICTION AND FOREIGN JUDGMENTS IN CIVIL
A N D C O M M E R C I A L M A T T E R S ( O c t . 3 0 , 1 9 9 9 ) , a v a i l a b l e a t
http://www.hcch.net/e/workprog/jdgm.html [hereinafter HAGUE CONVENTION DRAFT].
270. See Jane C. Ginsburg, International Copyright: From a "Bundle" of National
Copyright Laws to a Supranational Code?, 47 J. COPYRIGHT SOC'Y U.S.A. 265, 268 (2000)
("The German delegation, in a diplomatic questionnaire, asked whether it might be better to
abandon the national treatment principle in favor of a treaty that would codify the international
law of copyright and establish a uniform law among all contracting states.") According to
Ginsburg, "[a]lthough most participating countries viewed the proposition as a desirable one,
they voted against it because it would have required great modifications of their domestic laws,
which many countries could not implement all at once." Id.
271. Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should
Create Global Norms, 149 U. PA. L. REV. 469, 490 (2000) ("Proponents of this universalist
vision were rebuffed.... Instead, pragmatism prevailed...."); Ginsburg, supra note 270, at 269
("In general, in comparison to the Universalist draft adopted at the 1883 Conference, the final
draft of 1884 moved away from the idea of a comprehensive uniform international law of
copyright. But see Ginsburg, supra note 270, at 270 ("Although the Convention did not
achieve every goal outlined at the first Congress of 1858, it represented a major step towards
international copyright protection...[and] lay the groundwork for later evolution toward the
more universalist ideal expressed in earlier drafts.").
61
E. Teaching the World to Sing in Perfect Harmony I: Treaties
One obvious response to the challenges of globalization and online
communication is to seek increased international harmonization of legal
regimes. After all, if the substantive law applied around the world is the
same, then many of the concerns about borders, conflicting law, and
impermissible extraterritorial regulation disappear. Nevertheless, as the
discussions in the next two sections indicate, international norms are often
difficult both to establish practically and to justify normatively.
The classical model of international harmonization is through
bilateral and multilateral treaties. Two examples of such a treaty-based
approach will suffice to indicate the limitations of the classical model. First,
I will examine an older treaty, the Berne Convention for The Protection of
Literary and Artistic Works,268
which was designed to harmonize the
various national copyright regimes. Second, I will outline the debates
concerning the still-ongoing Convention on Jurisdiction and Foreign
Judgments in Civil and Commercial Matters, which is being developed under
the auspices of the Hague Conference on Private International Law.269
During the first meetings in 1883 to form the Berne Convention, an
attempt was made to institute a uniform international copyright system.270
By the time the Convention concluded three years later, however, that
ambition had been rebuffed, and the Berne Convention stops far short of
true harmonization.271
Instead, the participating countries agreed to a
272. See Berne Convention, supra note 268, art. 5(1), 1161 U.N.T.S. at 31
("Authors shall enjoy, in respect of works for which they are protected under this Convention,
in countries of the Union other than the country of origin, the rights which their respective laws
do now or may hereafter grant to their nationals ....").
273. See Dinwoodie, supra note 271, at 490.
274. See RICKETSON, supra note 268, at 53, 73-74.
275. See ST E P H E N M. STEWART, INTERNATIONAL COPYRIGHT AND
NEIGHBOURING RIGHTS § 4.46 (2d ed. 1989). For example, U.S. copyright law, taking a
market-oriented approach, recognizes employers as authors of works prepared by employees
within the scope of their employment, see 17 U.S.C. § 201(b) (1994) (providing that the
employer or commissioning party is the author of a work made for hire); 17 U.S.C. § 101
(1994) (defining "work made for hire" to include a work prepared by an employee within the
scope of his employment), whereas French law, focusing on the moral rights of the creator,
treats the employee as the author regardless of the employment relationship, see Law No. 92597
of July 1, 1992 on the Intellectual Property Code, art. L-113 (amended Mar. 27, 1997)
(Fr.) (providing for copyright ownership by employers only with respect to software).
276. For example, U.S. copyright law, unlike the law in most civil law countries,
permits unauthorized parodies of copyrighted works under the rubric of fair use. See Campbell
v. Acuff-Rose Music, Inc., 510 U.S. 569, 594 (1994) (holding that a rap group could, under the
fair use doctrine, create a parody of another song even if the use was commercial).
277. See Dinwoodie, supra note 271, at 492 ("Although these different [national]
approaches inevitably privilege many similar acts--such as core educational or research uses,
or uses implicating free speech concerns--many also reflect the exigencies of national cultural
policy (or political demands"); see also Sam Ricketson, The Boundaries of Copyright: Its Proper
Limitations and Exceptions: International Conventions and Treaties , 1999 INTELL. PROP. Q.
56, 93 (1999). For a discussion of the different exceptions found in national laws, see Jaap H.
Spoor, General Aspects of Exceptions and Limitations to Copyright: General Report, in THE
BOUNDARIES OF COPYRIGHT 27 (Libby Baulch et al. eds., 1999).
278. Dinwoodie, supra note 271, at 492-93.
279. See id. at 493.
62
system of "national treatment," whereby member states agreed to give
authors from other signatory states the same rights as those states apply to
domestic authors.272
Moreover, the Convention established a set of
minimum requirements for copyright protection to which all signatory states
must adhere.273
While this idea of minimum standards could in theory result
in a strong set of international norms, the actual minimum requirements set
by the Convention were extremely weak and relatively easy to meet.274
Thus, the Convention allowed great latitude for signatory states to
develop their own copyright regimes and create their own norms regarding,
for example, how to define the "author" for purposes of copyright
protection275
and how to carve out exceptions to copyright to respond to
free speech concerns276
or effectuate other social policies.277
Throughout
the 20th
century "the process of public international copyright lawmaking
tended to be slow and unwieldy because it operated by way of consensus
among...countries with a diverse range of social and economic
perspectives."278
As a result, changes to the Berne Convention have
generally represented mere codifications of commonly accepted policies
that, in many cases, had already been implemented in the national laws of
most member states before being incorporated into the Convention.279
Moreover, such changes have always been developed through the laborious
280. See id.
281. See Proposed Hague Convention Would Help IP Owners, NAŤL L.J. at C20
(Jul. 23, 2001) (describing U.S. government request that the Hague Conference on Private
International Law, of which US is a member state, negotiate and draft a convention on
jurisdiction and the enforcement of judgments in foreign countries).
282. See Paul Hofheinz, Birth Pangs for Web Treaty Seem Endless, WALL ST. J.
(Aug. 16, 2001), at A11 ("Should a German shopper be able to sue a U.S. Internet retailer in a
Munich court if he is unhappy with something he bought online? Delegations from 53 countries
have worked on an answer for more than two years, and it continues to elude them.").
283. See Hofheinz, supra note 282, at A11 ("When they meet here for their 10th
session in January, it won't be to discuss the treaty's provisions but to talk about whether its
scope should be reduced.").
284. See, e.g., J.H. Reichman, The Know-How Gap in the TRIPS Agreement: Why
Software Fared Badly, and What Are the Solutions, 17 HASTINGS COMM. & ENT. L.J. 763,
765 (1995) (arguing that "both the strengths and weaknesses of the TRIPS Agreement stem
from its essentially backwards-looking character").
285. Dinwoodie, supra note 271, at 494.
63
process of treaty revision.280
The Hague Convention has been beset by similar difficulties. The
treaty got its start in 1992, when the United States approached the other
countries that belong to the Hague Conference on Private International Law
and suggested the conference attempt to harmonize international rules for
enforcement of judgments across borders.281
Almost ten years later, that
goal continues to elude delegates to the convention, largely because of a
lack of consensus about adjudicatory jurisdiction generally, and jurisdiction
over online commercial transactions particularly.282
Indeed, the
disagreements are now so entrenched that, in 2002 when the delegates next
meet, they will not discuss any of the draft convention's substantive
provisions, but instead will consider scaling back the scope of the convention
altogether.283
Both of these attempts at international harmonization reveal the
principal drawbacks of attempting to establish international norms through
multilateral treaties. Almost by definition, these treaties will demand prior
consensus among many countries with different social policies and
economic interests. Thus, the treaties will tend merely to codify
painstakingly developed conventional wisdom about recognized problems.284
As a result, such treaties are rarely the best mechanism for developing new
solutions to emerging issues on which there are widely divergent traditions
and interests. Yet, "technological pressures demand a rapidity of
lawmaking, a dynamic disposition, and a forward-looking perspective."285
Accordingly, the classical model of public international lawmaking may not
be the appropriate mechanism for achieving international harmonization in
a fast-changing world.
286. See Understanding on Rules and Procedures Governing the Settlement of
Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization
[hereinafter WTO Agreement], Annex 2, Legal Instruments--Results of the Uruguay Round vol.
31, 33 I.L.M. 112 (1994) [hereinafter DSU] (establishing the rules and procedures to be used in
WTO dispute settlement proceedings).
287. See Dinwoodie, supra note 271, at 502 ("The diplomatic model of the GATT
gave way to the judicial model of the WTO, reflecting an attempt to shift from a power-based
to a rule- based procedure."); see also Adrian T.L. Chua, Precedent and Principles of WTO Panel
Jurisprudence, 16 BERKELEY J. INŤ L L. 171 (1998) (describing the shift to a rule-based model
of dispute settlement within the WTO); Kim Van der Borght, The Review of the WTO
Understanding on Dispute Settlement: Some Reflections on the Current Debate, 14 AM. U.
INŤ L L. REV. 1223, 1224 (1999) (describing the ways in which the Uruguay Round changed the
nature of the dispute settlement process from a power-based to a rule-based procedure).
288. See Geist, supra note 117.
289. See Dinwoodie, supra note 271, at 494-95.
290. See Chua, supra note 287, at 172 (reporting in 1998 that "GATT dispute
settlement panels resolved more than 100 cases between 1947 and 1994, [while s]ince the
implementation of the DSU in 1995, the WT O has received over 100 trade disputes with 28
cases proceeding to a dispute settlement panel" (citations omitted)).
291. See DSU, supra note 286, at art. 3(2).
64
F. Teaching the World to Sing in Perfect Harmony II: Supranational
Administrative Bodies
Given the cumbersome nature of public international lawmaking,
international harmonization efforts, not surprisingly, have shifted in recent
years to a somewhat more dynamic model, particularly in fields of rapid
technological development. For example, since the 1994 Uruguay Round
Revision Uruguay Round revision of the General Agreement on Tariffs and
Trade,286
commercial trade issues that were formerly hashed out through
diplomatic channels are now addressed by W.T.O. dispute resolution panels
in a more adjudicatory fashion.287
Likewise, the Arbitration and Mediation
Center of the World Intellectual Property Organization adjudicates 58
percent of the trademark disputes filed under the Internet Corporation for
Assigned Names and Numbers' Uniform Dispute Resolution Policy.288
International tax policy has been developed in OECD meetings and
guidelines.
The advantages of the more dynamic model are obvious.
International institutions can react far more quickly to new developments
without the need for diplomatic conferences or complete consensus.289
And, if the amount of activity is a sign of success, then it appears that the
more dynamic model is catching on. In the first three years of the W.T.O.
dispute settlement system, as many cases were filed as in the entire 47-year
period preceding the Uruguay Round.290
Nevertheless, there are several reasons to resist this dynamic
model. First, the Dispute Settlement Understanding of the W.T.O. makes
clear that its rulings "cannot add to or diminish the rights and obligations
provided in the covered agreements."291
Although the panels may, over
time, expand their ability to "interpret" (and thereby define or change)
292. See supra note 16.
293. As David Post has recently argued:
I think the problem of scale in governmental institutions is one we have
to think about again, because I don't see any good solutions, right now at
least, to how we build global institutions that have the trust of the people
who are subjected to their rules and regulations. I think this is related to
what we might call the Seattle phenomenon (or the WTO protests), if you
will. I think there is a very real phenomenon that is going to play itself
out on the Net as people ask themselves: Who or what are these
international institutions who have the authority to make the rules for this
global environment? Iťs an essential problem and a very difficult one.
A Roundtable Discussion with Lawrence Lessig, David G. Post & Jeffrey Rosen (Thomas E.
Baker, ed.), 49 DRAKE L. REV. 441, 443 (2001).
294. See David Palmeter, National Sovereignty and the World Trade Organization,
2 J. W ORLD INTELL. PROP. 77, 80-81 (1999) (arguing that the WTO's diplomatic model does
not fit a traditional legalistic model).
295. See Van Der Borght, supra note 287, at 241-42 (describing WTO procedures
and suggested reforms); see also Sands, supra note 31, at 543-46 (praising recent decisions of
the WTO Appellate Body that have begun to permit non-state actors to play a role in WTO
proceedings).
296. See Understanding on Rules and Procedures Governing the Settlement of
Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization,
Annex 2, Legal Instruments­Results of the Uruguay Round vol. 33, no. 1, 33 I.L.M. 112 (1994)
[hereinafter DSU]. Article 8 of the DSU provides the rules for the composition of panels. The
WTO Secretariat proposes nominations to the panel, which can be disputed only for compelling
reasons. DSU art. 8(6). The Secretariat maintains a list of qualified governmental and nongovernmental
individuals. DSU art. 8(4). The qualifications are general. The panelists must
be: well-qualified governmental and/or non-governmental individuals, including persons who
have served on or presented a case to a panel, served as a representative of an MTO Member
or of a contracting party to the GATT 1947 or as a representative to a council or committee
of any covered agreement or its predecessor agreement, or in the Secretariat, taught or published
on international trade law or policy, or served as a senior trade policy official of a Member.
65
international law, the governing documents seem designed to constrain any
truly creative administrative/judicial role.
Second, as the violent protests at international gatherings over the
last few years292
indicates, bodies such as the W.T.O. and the WIPO face
serious objections from the perspective of procedural transparency and
democratic legitimacy.293
Perhaps because they were developed in the
context of international diplomacy, these bodies assume a model of
mediation, negotiation, conciliation, and secrecy that might makes us pause
before endowing them with power to create international norms.294
For
example, many observers have urged that the procedures of these bodies
be made more transparent, through open hearings, greater access to the
submissions of parties, and the ability of non-state parties to participate.295
Even beyond procedural issues, however, W.T.O. panels face the
further objection that they are not accountable to any electorate. Although
all unelected adjudicatory bodies are insulated from democratic pressures
to some extent, accountability is usually built into the system at some stage
in the process, through, for example, appointment, confirmation, or removal
of decisionmakers. In contrast, W.T.O. panel members are selected
through an obscure process,296
and no democratically accountable official
DSU art. 8(1). Further, the panel members should be "selected with a view to ensuring the
independence of the members, a sufficiently diverse background and a wide spectrum of
experience." DSU art. 8(2). The panelists generally cannot be from the disputant country, DSU
art. 8(3), and must "serve in their individual capacities and not as government representatives,
nor as representatives of any organization," DSU art. 8(10).
297. See Dinwoodie, supra, note 271, at 506 (pointing out the poor representational
legitimacy of the WTO panels because they are "insulated from democratic pressures"); David
M. Driesen, What is Free Trade?: the Real Issue Lurking Behind the Trade and Environment
Debate, 41 VA . J. INŤL L. 279, 316-17 (2001) (explaining that the WTO lacks democratic
legitimacy because the officials are not selected by citizens or legislative bodies, but generally
by the GATT Secretariat); Richard Falk & Andrew Strauss, On the Creation of a Global Peoples
Assembly: Legitimacy and the Power of Popular Sovereignty, 36 STANFORD J. INŤL L. 191,
213-14 (2000) (observing that the denial of citizen participation in the WTO has raised the
concern that "some type of democratic process is needed to counter growing popular opposition
to many of its initiatives.").
298. See Ruth Okediji, Toward an International Fair Use Doctrine, 39 COLUM. J.
TRANSNAŤL L. 75, 85 (2000) ("The [democratic] deficit refers to the extent that
international agencies increasingly have been allocated legislative competencies directly
compromising domestic law and policies that have been established through duly appointed
processes so as to ensure transparency, accountability and the opportunity for citizens to be
heard."); see also Peter L. Lindseth, Democratic Legitimacy and the Administrative Character
of Supranationalism: The Example of the European Community, 99 COLUMN. L. REV. 628,
628 (1999); (arguing that the European Community's "`democratic deficiť flows primarily
from an inability to establish democratically-legitimate hierarchical supervision over
supranational technocrats­a problem bound up with the relationship between demos, democracy
and national political institutions as cultural symbols of popular sovereignty."); Francesca E.
Bignami, The Democratic Deficit in European Community Rulemaking: A Call for Notice and
Comment in Comitology, 40 HARV. INŤL L.J. 451 (1999).
299. See Lindseth, supra note 298, at 633 (arguing that supranational institutions
raise questions of democratic legitimacy due to the "transfer of power to agents that are not
electorally responsible" to the people they represent).
300. Dinwoodie, supra note 271, at 505.
66
is involved.297
Thus, we see a "democratic deficit"298
because lawmakers
lack electoral responsibility to the "people whose `sovereignty'" they
exercise.299
As one commentator has argued, "the GATT is not the world
constitution, and the W.T.O. is not the World Supreme Court. They both fail
to adhere to some of the essential standards required of institutions that
would claim to exercise prescriptive authority over individuals throughout
the world."300
Third, the structure of the W.T.O. process, in which complaints are
brought by countries rather than by individual parties, may tend to produce
norms skewed toward a limited range of interests because the concerns of
a national government may not reflect a variety of interests present within
the population at large. For example, in the copyright context, the United
States Trade Representative may well take the position in disputes before
the W.T.O. or the WIPO that greater copyright protection is beneficial to
U.S. industry as a whole, thereby ignoring those who might advocate a
lesser level of protection, in order to create greater distributional equity
between countries or to protect non-trade interests, such as privacy or free
speech. In addition, the lack of procedural transparency or democratic
accountability may make such international administrative/adjudicative
301. See Geist, supra note 117. Geist also found that, in cases where the parties opt
for a single arbitrator rather than a panel of three (90 percent of the total), the complainant
wins 84.4 percent of the time. See id.
302. Dinwoodie, supra note 271, at 513-14 (footnote omitted).
303. See Paul B. Stephan, The Futility of Unification and Harmonization in
International Commercial Law, 39 VA. J. INŤL L. 743 (1999).
67
bodies more subject to industry capture. For example, a recent study of
domain name trademark decisions reached by WIPO's Arbitration and
Mediation Center found that WIPO arbitrators ruled in favor of the
trademark holders 82.2 percent of the time.301
Fourth, the very advantage of these bodies--their ability to address
probatively new issues in a changing environment--may also be a
disadvantage. After all, a decision of a W.T.O. dispute resolution body may
not only establish international norms, but also may entrench those norms,
freezing them in place and preempting the ability of various countries to
experiment with different approaches. Moreover, such international norms
will tend to frustrate national efforts to tailor trade policy to particular social,
cultural, or economic conditions. For example,
different countries with varying educational practices and
literacy rates may permit or prohibit quite different copying
practices. The manner in which authors are compensated
may differ from country to country depending upon
established labor and employment practices. The ways in
which works are exploited, and thus need to be protected,
may hinge upon social customs unique to particular
countries. The extent of reasonable copying privileges
may reflect the level of access to public libraries.
Commitments to free expression, and hence use of a work
in that cause without the need for permission, may vary in
intensity depending upon the political development of the
society in question. Unqualified respect for the integrity of
artistic works might be affected by different notions of
property. And market mechanisms necessary to support
schemes for compensating authors might be more feasible
in certain cultures than in others.302
Whether or not one believes that international norms should subsume such
local variations, it is surely problematic that such overarching norms might
be established by marginally accountable bodies with input often from only
two litigating countries.
Finally, some critics have suggested that the goal of harmonization
may do more harm than good. For example, Paul Stephan has pointed out
two common outcomes of the harmonization process, neither of which are
normatively desirable.303
First, Stephan contends that international
harmonization efforts are often simply the product of rent-seeking by
various industry groups. He suggests that many harmonization efforts in
304. Id. at 744.
305. Id. at 789.
306. See generally Dinwoodie, supra note 271; see also Graeme B. Dinwoodie, The
Development and Incorporation of International Norms in the Formation of Copyright Law, 62
OHIO ST. L.J. 733 (2001).
307. Lex mercatoria has been defined as "a set of general principles and customary
rules spontaneously referred to or elaborated in the framework of international trade, without
reference to a particular national system of law." Philip J. McConnaughay, Rethinking the Role
of Law and Contracts in East-West Commercial Relationships, 41 VA. J. INŤL L. 427, 473
n.167 (2 0 0 1 ) (quoting Berthold Goldman, The Applicable Law: General Principles of Law--the
Lex Mercatoria, in CONTEMPORARY PROBLEMS IN INTERNATIONAL ARBITRA T I O N 113, 116
(Julian D. M. Lew ed., 1987)). Lex mercatoria is not a monolithic body of law, and is neither
purely national nor purely international. See Abul F.M. Maniruzzaman, The Lex Mercatoria
And International Contracts: A Challenge For International Commercial Arbitration?, 14 AM.
U. INŤL L. REV. 657, 674 (1999). It appears to have developed during the middle ages, when
transnational merchants resolved their disputes in specialized merchant courts that applied
customary transnational commerce norms and trade practices rather than any particular
national positive law. See Lawrence M. Friedman, Commentary: Erewhon: The Coming Global
Legal Order, 37 STAN. J. INŤL L. 347, 356 (2001); Philip J. McConnaughay, The Scope Of
68
commercial law are initiated by particular industries seeking particular legal
rules. The resulting international norms are usually drafted by industry
experts and, not surprisingly, benefit the industry seeking the change.
Second, he observes a tendency among the various parties to an
international harmonization effort to adopt relatively vague standards in
order to smooth over major policy disagreements. These standards,
because they are couched in such general language, then become a license
for domestic decisionmakers to exercise broad discretion in interpreting the
international norm. As a result, the law may well become even less certain
than it was before, thus foiling the harmonization effort altogether.
Accordingly, Stephan argues that "[t]he political economy of [the
harmonization] process results too often either in rules written for the
benefit of particular industries and other interest groups, or in the
suppression of conflict that in turn increases legal risk."304
Instead, he
envisions a system that would allow parties virtually unlimited power to
choose among national rules through private contractual agreements.305
Whether or not one embraces Stephan's alternative, his criticism of
international harmonization should at least raise doubts regarding the
efficacy of the enterprise.
G. A Return to Lex Mercatoria
Given the problems inherent in both treaty-based and agency-based
efforts to harmonize legal regimes, one possible alternative is to consider the
role national courts might play in developing international norms. In several
recent articles, Graeme Dinwoodie has advocated this approach, particularly
with regard to copyright law.306
Essentially, Dinwoodie asks courts to
develop an international common law, resurrecting the "lex mercatoria"307
Autonomy In International Contracts And Its Relation To Economic Regulation And
Development, 39 COLUM. J. TRANSNAŤL L. 595, 610 fn.31 (2001). This hybrid practice
governed exporters and importers, shippers, banks, and marine insurance companies. See Harold
J. Berman, Law and Logos, 44 DEPAUL L. REV. 143, 157 n.47 (1994). The principal
advantage of lex mercatoria is that it eliminates uncertainties regarding which jurisdiction's law
will apply to a given dispute, see Maniruzzaman, supra, at 680 (1999), although as with all
common law doctrines, uncertainties may remain with regard to the substantive norms to be
applied.
308. See Dinwoodie, supra note 271, at 522; see also B. Santos, Law, A Map of
Misreading: Toward a Postmodern Conception of Law, 14 J. OF L. & SOC'Y 279, 287 (1987)
(describing the re-emergence of lex mercatoria as an example of one way in which
"transnational capital has...created a transnational legal space, a supra-state legality.").
309. See Dinwoodie, supra note 271, at 475.
310. Id.
311. See id. at 476.
312. David F. Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. REV.
173, 189 (1933).
313. See Dinwoodie, supra note 271, at 548.
314. Id. at 548-49.
315. See id. at 552.
69
that for centuries governed international trade.308
Dinwoodie starts from the observation that all current approaches
to choice of law force courts to localize international disputes and therefore
resolve them under the law of one country or another.309
This process
forecloses courts from considering international norms that might exist
"separate and apart from domestic policy objectives."310
As Dinwoodie
points out, however, international disputes often implicate interests beyond
those at stake in purely domestic disputes.311
Thus, he recommends that
national courts develop a substantive common law for addressing multistate
cases.
Many decades ago, conflict-of-laws theorist David Cavers wrote
that, in a conflicts analysis, "[t]he court is not idly choosing a law; it is
determining a controversy. How can it choose wisely without considering
how that choice will affect that controversy?"312
Building on this
observation, Dinwoodie argues that the judicial role often involves choices
among many different substantive solutions, and courts should be free to
generate legal standards in multistate cases the same way they do in purely
domestic cases.313
Moreover, "statutory rules enacted by a national
legislature are rarely enacted with an eye to international disputes or
conduct."314
As a result, these legislative choices inevitably reflect
domestic priorities, and there is no particular reason to apply them
reflexively in international conflicts. Finally, Dinwoodie argues that, when
a dispute is multinational, it will always implicate interests in at least two
different nations. Thus, when courts arbitrarily (or even not so arbitrarily)
choose to apply one nation's laws over the other, they are responding only
to one nation's interests.315
Instead, in Dinwoodie's view, courts should
develop an appropriate rule "from an amalgam of national and international
316. Id. at 550.
317. Id.
318. Id. at 544.
319. Id.
320. Henry H. Perritt, Jr., Economic and Other Barriers to Electronic Commerce,
21 U. PA. J. OF INŤL ECON. L. 563, 574 (2000).
321. Id. at 575; see also generally Perritt, supra note 267.
322. See Perritt, supra note 320, at 574.
70
norms."316
This hybrid form of lawmaking would respond to "the reality of
modern life" by reflecting "the complex and interwoven forces that govern
citizens' conduct in a global society."317
Significantly, Dinwoodie reaches back to conflict-of-laws
approaches that pre-date the rise of the Westphalian order of independent
sovereign states. Indeed, he observes that the idea of a substantive body
of international common-law norms "declined in significance with the rise
of nation-states and with positivistic demands for a clear connection
between law and the sovereign."318
Dinwoodie argues, however, that these
approaches may once again be worth considering given "the relative decline
of the nation-state."319
Thus, like the arguments I make in this article,
Dinwoodie's call for the re-development of a lex mercatoria is a response
to changing conceptions of national sovereignty.
H. The Triumph of NGOs
Because the various questions about extraterritorial law-making and
jurisdictional limitations arise primarily with regard to public governmental
institutions exercising sovereign powers, some commentators have looked
to private, non-governmental organizations wielding quasi-governmental
power. As Henry Perritt has recently argued, "jurisdictional uncertainties
associated with transnational commerce on the Internet can be reduced
when rules are made and enforced by private rather than public
institutions."320
Perritt advocates public-private hybrid governance structures. In
his model, public law sets minimum general standards and provides
enforcement power, while multiple "private regulatory regimes can work out
detailed rules, first-level dispute resolution, and rule enforcement
machinery."321
And, like the contractarian model discussed previously,
Perritt believes that this sort of hybrid governance system could exercise
jurisdiction through contractual agreement, thereby side-stepping legitimacy
concerns.322
Perritt offers three examples of his hybrid model. First, he points
to the Internet Corporation for Assigned Names and Numbers (ICANN),
the not-for-profit corporation that, as we have seen, administers the Internet
domain name system and provides an online dispute resolution forum for
323. See Perritt, supra note 267, at 940-44 (discussing the scope of ICANN's
regulatory responsibilities).
324. See id. at 932-40 (commenting on the procedures envisioned by the European
Commission and the United States in enforcing compliance with the safe harbor rules).
325. See Henry H. Perritt, Jr., Dispute Resolution in Cyberspace, 15 OHIO ST. J. ON
DISP. RESOL. 675, 691-92 (2000).
326. See ICANN, Uniform Domain-Name Dispute Resolution Policy, at http://
www.icann.org/udrp/udrp.htm (last updated June 17, 2000) ("Under the policy, most types of
trademark-based domain name disputes must be resolved by agreement, court action or
arbitration before a registrar will cancel, suspend or transfer a domain name.").
327. See WIPO, Supplemental Rules for Uniform Domain Name Dispute Resolution
Policy (in effect as of Dec. 1, 1999) ("These supplemental rules are to be read and used in
connection with the Rules for Uniform Domain Name Dispute-Resolution Policy approved by
[ICANN] on Oct. 24, 1999."), at http:// arbiter. wipo.int/domains/rules/supplemental.html.
328. See ICANN, Registrar Accreditation Agreement §§ II(k), at http://
www.icann.org/nsi/icann-raa-04nov99.htm (approved Nov. 4, 1999) (last modified Nov. 9,
1999) ("During the term of this Agreement, Registrar shall have in place a policy and procedure
for resolution of disputes concerning [Second- Level domain] names. In the event that ICANN
adopts a policy or procedure for resolution of disputes concerning SLD names that by its terms
applies to Registrar, Registrar shall adhere to the policy or procedure.").
329. See, e.g., BBBOnline, at http://www.bbbonline.org (last visited Sept. 30, 2000)
(offering a process by which to file a complaint against an offending website for use of
personally identifiable information); TRUSTe, at http://www.truste.org (last visited Sept. 30,
2000) (certifying a subject website with a visible logo and inclusion of privacy statement that
adheres to privately established privacy policies).
330. See Perritt, supra note 320, at 577; see also Robert D. Cooter & Edward L.
Rubin, A Theory of Loss Allocation for Consumer Payments, 66 TEX. L. REV. 63, 99-102, 101
n.137 (1987) (describing the rights of card issuers to cancel cardholder's account under certain
circumstances).
71
adjudicating domain name conflicts.323
Second, he notes that the recent
agreement between the European Commission and the United States
concerning privacy protection envisions several private regulatory
regimes.324
Third, he argues that credit card companies will provide dispute
resolution mechanisms for virtually all credit card based Internet
commerce.325
Each of these regulatory regimes is a form of government, with
private intermediaries performing roles traditionally filled by governmental
entities. For example, ICANN promulgates rules for issuance and retention
of domain names,326
administrative panels of the World Intellectual Property
Organization adjudicate these controversies using ICANN regulations,327
and domain name registrars revoke or transfer domain names in accordance
with panel decisions.328
Likewise, current privacy regulatory regimes
depend upon private third parties who will certify that a site complies,
thereby immunizing members from public regulatory action.329
With credit
card purchases, the credit card issuers themselves function as
intermediaries, refusing to pay merchants who fail to deliver merchandise
or revoking credit from consumers who fail to pay.330
Nevertheless, such private regulatory bodies raise serious concerns
about accountability and transparency. For example, in the United States,
under the Supreme Courťs traditional interpretation of the so-called "state
331. Having its genesis in an 1883 Supreme Court decision overturning
Reconstruction-era civil rights legislation, see The Civil Rights Cases, 109 U.S. 3 (1883), the
state action doctrine, in its least nuanced form, rests on the observation that most constitutional
commandments proscribe only the conduct of governmental actors. For example, the
Fourteenth Amendment provides that "No state shall. . . ." U.S. CONST. AMEND. XIV
(emphasis added). As a result, the Supreme Court has often refused to apply these constitutional
provisions to so-called "private action." Thus--and again to express the doctrine in its least
subtle form--the state cannot constitutionally exclude African-Americans from a government
housing facility, but the Constitution is silent with regard to an individuaľs choice to exclude
African-Americans from his or her home. Similarly in cyberspace, so the doctrine might go,
the activities of private corporations, such as America Online or ICANN or the other bodies
that Perritt describes, are not subject to the Constitution because they are not state actors.
332. For a discussion of such concerns, see generally Berman, supra note 211.
333. See Perritt, supra note 320, at 578-79. ICANN, for example, has faced
particularly searching questions on these issues. See, e.g., Geist, supra note 117; Froomkin,
supra note 117; see also ICANN, Preliminary Report: Meeting of the ICANN Board in
Yokohama (July 16, 2000) (reporting on changes in ICANN bylaws to resolve disagreements
about at-large members and selection of board members by them),
http://www.icann.org/minutes/prelim-report-16jul00.htm; ICANN, Public Comment Forum, AtLarge
Elections: Proposed Rules for Self-Nomination (Comments through July 7, 2000)
(discussing, in a participatory forum, at-large membership selection and representation), at
http://www.icann.org/ mbx/selfnomination.
334. See, e.g., CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE
STORY OF THE CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787, at 69-74 (1966)
(describing how Constitutional Convention delegates settled on a method for electing members
of Congress); Lindseth, supra note 298 (discussing European Community's "democratic
deficit").
335. Jack Goldsmith, The Internet and the Abiding Significance of Territorial
Sovereignty, 5 IND. J. OF GLOBAL LEGAL STUD. 475, 475 (1998) [hereinafter Goldsmith,
Territorial Sovereignty]; see also, Jack Goldsmith, Against Cyberanarchy; Jack Goldsmith, The
Internet, Conflicts of Regulation, and International Harmonization, in GOVERNANCE OF
GLOBAL NETWORKS IN THE LIGHT OF DIFFERING LOCAL VALUES 197 (Christoph Engel &
Kenneth H. Keller eds.) (2000) [hereinafter Goldsmith, Conflicts of Regulation]. Others share
Goldsmith's view. See, e.g., Josef Sommer, Against Cyberlaw, 15 BERKELEY TECH. L.J. 1145
72
action doctrine,"331
these private entities need not comply with constitutional
norms.332
Similarly, one wonders how well minority rights will be protected
in these private regimes and by what mechanisms such entities will ensure
impartial decisionmaking and fair procedure.333
While these same concerns
arise in the public arena,334
there are likely to be far fewer democratic
checks on private entities.
I. Challenge? What Challenge?
Over the past several years, Jack Goldsmith has consistently
attempted to refute the Johnson and Post view that the rise of cyberspace
requires us to rethink issues of sovereignty and territoriality. Indeed,
according to Goldsmith, the Internet and globalization produce no true
conceptual challenges at all. Rather, he argues that "territorial regulation
of the Internet is no less feasible and no less legitimate than territorial
regulation of non-Internet transactions."335
(2000).
336. See Goldsmith, Conflicts of Regulation, supra, at 197.
337. Goldsmith, Territorial Sovereignty, supra note 335, at 479.
338. For example, a recent lawsuit filed in France seeks an order requiring French
ISPs to block access to an American portal that allegedly hosts "hate websites." See Ned
Stafford, French ISPs Fight to Avoid Blocking Nazi, Racist Content, NEWSBYTES, (Sep. 4,
2001), available at http://www.newsbytes.com/cgi-bin/u...lient.id=newsbytes&story.id=169727.
339. See id. at 481-82; Goldsmith, Conflicts of Regulation, supra note 335, at 199.
340. Goldsmith, Territorial Sovereignty, supra note 335, at 484.
73
Goldsmith takes on two related contentions: first, that territorial
regulation is infeasible because individuals can easily avoid the sovereign's
regulatory reach; and second, that territorial regulation means that a website
will be subject to the laws of all jurisdictions simultaneously. Both claims, he
argues, are exaggerated because they fail to distinguish between a state's
prescriptive jurisdiction and its enforcement jurisdiction. Prescriptive
jurisdiction is a nation's power to apply its laws to particular transactions.
But the question of whether or not that regulation will actually be enforced
depends upon the nation's ability to induce or compel compliance with the
law through its enforcement jurisdiction.336
Thus, he argues that, just because individuals may try to evade a
nation's enforcement jurisdiction by, say, relocating off-shore, does not
render the idea of regulating the harms caused by those individuals
illegitimate. Goldsmith acknowledges that the regulation of a local act might
not be efficacious if the individual subject to the regulation is not present
within the jurisdiction. But he argues that the sovereign will still be able to
enforce its regulation "to the extent that the agents of the acts have a local
presence or local property against which local laws can be enforced."337
Moreover, even if the content provider has no local presence or
property, the sovereign will be able to regulate harms indirectly by moving
against end users within their enforcement power or intermediaries that
operate within their territory, such as Internet service providers or
manufacturers of hardware or software. These actions may either
encourage local intermediaries to enforce the local laws against foreign
parties or may induce local parties to include devices to block objectionable
content.338
In either scenario, the local jurisdiction turns out to have more
extraterritorial power than originally envisioned.339
Likewise, Goldsmith argues that there is nothing inherently
illegitimate about a local regulation that happens to affect behavior
extraterritorially. As he says, "[i]t is uncontroversial that pollution emitted
in State A that wafts into State B can be regulated in State B."340
And,
though one might think notice is a more severe problem in the Internet
context--where the material that "wafts" from jurisdiction to jurisdiction
may do so all over the globe simultaneously and unknowingly--Goldsmith
argues that geographical filtering technology will allow content providers to
ensure that material deemed objectionable in a jurisdiction never reaches
341. See id; Goldsmith, Conflicts of Regulation, supra note 335, at 201-02.
342. Goldsmith, Territorial Sovereignty, supra note 335, at 485 ("The vast majority
of individuals who transact on the Internet have no presence or assets in the jurisdictions that
wish to regulate their information flows.").
343. See 47 U.S.C. §230(c)(1) (Supp. 1999) ("No provider or user of an interactive
computer service shall be treated as the publisher or speaker of any information provided by
another information content provider."); see also Zeran v. America Online, 129 F.3d 327, 330
(4th
Cir. 1997) (concluding that Congress enacted this provision because of "the threat that tortbased
lawsuits pose to freedom of speech in the new and burgeoning Internet medium").
74
that jurisdiction.341
Moreover, according to Goldsmith, as long as the
content provider never sets foot in the jurisdiction, enforcement power will
be lacking.342
Goldsmith's analysis, however, raises several normative questions
about the nature of Internet communication. First, Goldsmith's conclusion
that the Internet poses no new jurisdictional issues is premised on the idea
that extraterritorial regulation has existed for a long time, which is, of
course, true. But it is reasonable to think that international disputes
heretofore generally involved relatively large and sophisticated parties.
Such parties were likely to have some presence in the enforcing jurisdiction,
and possess the resources to arrange their affairs to avoid "entering" a
jurisdiction with unfavorable laws. Neither of these assumptions is
necessarily true with regard to the Internet. For example, it may be
prohibitively expensive for a small business or individual to filter out only
users from selected jurisdictions. One might not want the threat of
extraterritorial regulation to curtail such actors from posting content.
Goldsmith might respond to this objection by pointing out that the
small player is protected by the fact that the distant jurisdiction will have no
means of enforcing any judgment. But such an argument assumes that this
individual not only has no presence or assets in the foreign jurisdiction, but
will never have such a presence or maintain such assets. This regime could
easily have a chilling effect on travel. For example, if France has a
judgment outstanding against me for material posted on the Internet, I must
now avoid any travel to France. This is to say nothing, of course, about the
very real danger of international extradition.
Goldsmith also assumes that a jurisdiction can pursue claims against
intermediaries as a way of enforcing regulations against distant parties, but
such regulation has very real costs. For example, service providers might
find that the threat of liability makes them filter online activity more
aggressively or cause them to spend a tremendous amount of money trying
to intercept the flow of messages in order to investigate them. Indeed, this
is precisely why American Internet service providers have lobbied for and
received immunity for defamatory e-mail and websites carried on their
services.343
Goldsmith seems to recognize this problem. He acknowledges that
the need to filter information to conform with the law of multiple
jurisdictions "places enormous burden on content providers that might
344. Goldsmith, Territorial Sovereignty, supra note 335, at 485.
345. Id.
346. While Yahoo! had a French subsidiary, the existence of the subsidiary would not
usually be considered sufficient to bring suit against the parent corporation. See Phillip I.
Blumberg, Does Company Law Adequately Address the Problems Presented by Multinational
Corporations?, ___ AM. J. COMP. L. ___ (forthcoming, 2002).
347. See Universal City Studios Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
348. See Mark Sableman, Link Law Revisited: Internet Linking Law at Five Years, 16
BERKELEY TECH. L.J. 1273, 1323 (2001) ("[A]ll of the defendants were enjoined from posting
the [infringing] utility, but they were not enjoined from posting links to sites that carried the
utility. [The defendants] continued to post their links, and described their acts in doing so as
`electronic civil disobedience.'").
349. See Peter L. Strauss, The Common Law and Statutes, 70 U. COLO. L. REV. 225,
236 (1999) (suggesting that civil law judging is less alien to the common law tradition than is
usually supposed because codes can be notoriously vague and are often sufficiently general
75
significantly curtail Internet activity."344
But, he cheerfully responds, "there
is nothing sacrosanct about Internet speed, or about a foreign content
provider's right to send information everywhere in the world with
impunity."345
Thus, Goldsmith's analysis embeds the normative assumption
that the distinctive benefits of the Internet should be jettisoned so that the
existing jurisdictional framework can be preserved. Many will not share
that normative viewpoint, however, and Goldsmith's analysis offers little
consolation to those people.
Finally, despite Goldsmith's claims that these extraterritorial
enforcement problems are exaggerated and mostly hypothetical, many of
the challenges discussed in this article belie that assertion. Indeed,
Yahoo.com appears to have capitulated to the French court order regarding
Nazi memorabilia despite having no presence in France,346
and the very real
tax dilemmas discussed previously indicate that the jurisdictional problems
raised by online activity are not at all hypothetical. In addition, the problems
of extraterritorial regulatory evasion will likely persist as well. For example,
in a recent case involving the Digital Millennium Copyright Act, an
American defendant was enjoined from posting information that allowed
circumvention of the encrypted code on Digital Video Disks.347
Such an
order, however, will necessarily have only limited power over non-U.S.
sites, and the defendant immediately posted links to those sites.348
Goldsmith's assurance that this is not a problem may not satisfy those
seeking to regulate online activity, whether governments or private parties.
J. Common-law Evolution
One reason we need not radically rethink conceptions of
jurisdiction, Goldsmith might argue, is that courts are perfectly capable of
adapting established legal doctrine to new contexts. Thus, we can simply
leave it to the common-law process (even in civil law countries, where
judges must often engage in "gap-filling" and interpretation)349
to develop
(because they must handle a variety of unforeseen circumstances) that they require extensive
judicial elaboration).
350. Some have argued that the adjudicatory jurisdiction question is not as difficult
a challenge as the question of how a judgment will be enforced. See, e.g., Michael Geist, Is There
a There There? Toward Greater Certainty for Internet Jurisdiction, 16 Berkeley Tech. L.J.
1345, 1354 (2001) (breaking the issue of Internet jurisdiction into three "layers": adjudicatory
jurisdiction, choice of law, and enforcement of judgments); see also Henry H. Perritt, Jr., Will
the Judgment-Proof Own Cyberspace?, 32 INŤL LAW. 1121, 1123 (1998) ("The real problem
is turning a judgment supported by jurisdiction into meaningful economic relief. The problem
is not the adaptability of International Shoe-obtaining jurisdiction in a theoretical sense. The
problem is obtaining meaningful relief."). For further discussion of the relationship of
jurisdiction to choice of law and recognition of judgments, see infra, section V(c).
351. 326 U.S. 310 (1945).
352. International Shoe, 326 U.S. at 316 (internal quotation omitted).
353. Indeed, the Supreme Court issued at least twelve major personal jurisdiction
decisions between 1976 and 1990 alone. See Burnham v. Superior Court, 495 U.S. 604 (1990);
Omni Capital Intl., Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987); Asahi Metal Indus. Co. v.
Superior Court, 480 U.S. 102 (1987); Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985);
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); Helicopteros Nacionales De Colombia,
S. A. v. Hall, 466 U.S. 408 (1984); Keeton v. Hustler Magazine, Inc. , 465 U.S. 770 (1984);
Calder v. Jones, 465 U.S. 783 (1984); Insurance Corp. Of Ireland v. Compagnie Des Bauxites
De Guinee, 456 U.S. 694 (1982); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286
(1980); Kulko v. Superior Court, 436 U.S. 84 (1978); Shaffer v. Heitner, 433 U.S. 186 (1977).
354. 937 F. Supp. 161, 165 (D. Conn. 1996).
76
the guidelines necessary for addressing the challenges of globalization and
the Internet.
Certainly judges have attempted to do just that. Faced with a set
of new questions raised by increased online interaction, courts have worked
to adapt established legal frameworks to craft useful solutions to questions
of jurisdiction and choice of law. Nevertheless, even a brief glimpse at
evolving U.S. case law reveals that the fit between traditional doctrine and
new context is imperfect at best.
In the area of personal jurisdiction,350
U.S. courts have, since 1945,
attempted to apply the Supreme Courťs flexible due process standard first
articulated in International Shoe Co. v. Washington.351
Thus, courts ask
whether the defendant had sufficient contact with the relevant state "such
that jurisdiction is consistent with traditional notions of fair play and
substantial justice."352
As transportation and interstate commerce have
continued to grow in the decades since 1945, the Supreme Court has many
times been called upon to determine how far to expand the reach of
personal jurisdiction.353
By 1995, questions about personal jurisdiction based on Internet
contacts were beginning to arise in district courts around the country. At
first, it appeared that at least some courts would find that the exercise of
personal jurisdiction was proper even over defendants whose only contact
with the relevant state was an online advertisement available to anyone with
Internet access. For example, in Inset Systems, Inc. v. Instruction Set,
Inc.,354
a federal district court in Connecticut ruled that it had proper
jurisdiction over the defendant, a Massachusetts-based provider of
355. Id. at 165 (D. Conn. 1996).
356. For example, in Maritz Inc. v. CyberGold, Inc., 947 F. Supp. 1328 (E.D. Mo.
1996), the court found jurisdiction in Missouri over a California corporation. Although
defendanťs web server was located in California, the court noted that the disputed website was
"continually accessible to every Internet-connected computer in Missouri." Id. at 1330.
According to the court, "CyberGold has consciously decided to transmit advertising information
to all Internet users, knowing that such information will be transmitted globally. Thus,
CyberGolďs contacts are of such a quality and nature, albeit a very new quality and nature for
personal jurisdiction jurisprudence, that they favor the exercise of personal jurisdiction over
defendant." Id. at 1333. Similarly, in Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715
(Minn. 1997), the Minnesota Supreme Court ruled that the state Attorney Generaľs office could
sue an on-line gambling service in Minnesota even though the service was based outside of the
state. Relying on Inset and Maritz, the court determined that the defendants had "purposefully
availed themselves of the privilege of doing business in Minnesota," id. at 721, based on a
finding that "computers located throughout the United States, including Minnesota, accessed
appellants' websites," id. at 718. See also, e.g., Telco Communications v. An Apple a Day, 977
F. Supp. 404, 407 (E.D. Va. 1997) (a website available twenty-four hours a day in the forum
state constituted " a persistent course of conduct" in the state); Heroes, Inc. v. Heroes Found.,
958 F. Supp. 1, 5 (D.D.C. 1996) (suggesting that the existence of a website might be deemed
a sustained contact with the forum because "it has been possible for a . . . resident [of the forum]
to gain access to it at any time since it was first posted").
357. 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
358. Id. at 1124.
359. Id.
360. See id.
77
computer technology, even though Instruction Set maintained no offices in
Connecticut and did not conduct regular business there. The court ruled
that the defendanťs promotional website, because it was accessible in
Connecticut, supported the exercise of jurisdiction in the state. According
to the court, the website advertisements were directed to all states within
the United States. Therefore, Instruction Set had "purposefully availed
itself of the privilege of doing business within Connecticut."355
Similarly,
other courts have at times indicated that the posting of a website accessible
within a state, without more, might be sufficient to justify jurisdiction.356
Although the United States Supreme Court has yet to address the
issue of personal jurisdiction based on Internet contacts, most lower courts,
perhaps concerned over the broad implications of cases like Inset, have
attempted to craft a more moderate rule. The most influential case thus far
has been Zippo Manufacturing Co. v. Zippo Dot Com, Inc.357
There, the
district court applied a "sliding scale" to Internet contacts in order to
determine the "nature and quality of commercial activity that an entity
conducts over the Internet."358
On one end of the courťs spectrum was a
"passive" website, where a defendant has simply posted information on the
Internet "available to those who are interested."359
According to the court,
such a site, absent additional contact with the forum state or its citizens,
would not be enough to support jurisdiction.360
At the other end of the
spectrum, the court placed "active" websites where the defendant "enters
into contracts with residents of a foreign jurisdiction that involve the
361. Id.
362. See id.
363. Id.
364. See, e.g., Soma Medical Intern. v. Standard Chartered Bank, 196 F.3d 1292
(10th Cir., 1999); GTE New Media Services Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir.
2000); Amberson Holdings LLC v. Westside Story Newspaper , 110 F.Supp.2d 332 (D. N.J.,
2000); Hasbro, Inc. v. Clue Computing, Inc., 66 F.Supp.2d 117 (D. Ma.., 1999); Search Force
Inc. v. DataForce Intern., Inc., 112 F.Supp.2d 771 (S.D. Ind., 2000); American Eyewear, Inc.
v. Peeper's Sunglasses and Accessories, Inc., 106 F.Supp.2d 895 (N.D. Tex., 2000); Patriot
Systems, Inc. v. C-Cubed Corp., 21 F.Supp.2d 1318 (D. Utah, 1998); Roche v. Worldwide
Media, Inc., 90 F.Supp.2d 714 (E.D. Va., 2000); Coastal Video Communications, Corp. v.
Staywell Corp., 59 F.Supp.2d 562, (E.D. Va., 1999); Butler v. Beer Across America, 83
F.Supp.2d 1261 (N.D. Ala., 2000); Colt Studio, Inc. v. Badpuppy Enterprise, 75 F.Supp.2d 1104
(C.D. Cal., 1999); CIVIX-DDI LLC v. Microsoft Corp., 1999 WL 1020248 (D. Colo., 1999);
Blumenthal v. Drudge, 992 F.Supp 44 (D.D.C., 1998); J.B. Oxford Holdings, Inc. v. Net Trade,
Inc., 76 F.Supp.2d 1363 (S.D. Fla., 1999); Berthold Types Ltd. v. European Mikrograf Corp.,
102 F.Supp.2d 928 (N.D. Ill., 2000); International Star Registry of Illinois v. Bowman-Haight
Ventures, Inc., 1999 WL 300285 (N.D. Ill., 1999); Vitullo v. Velocity Powerboat, Inc. , 1998 WL
246152 (N.D. Ill., 1998); F. McConnell and Sons, Inc. v. Target Data Systems, Inc., 84
F.Supp.2d 961 (N.D. Ind., 1999); Resuscitation Technologies, Inc. v. Continental Health Care
Corp., 1997 WL 148567 (S.D. Ind., 1997); Alantech Distribution, Inc. v. Credit General Ins.
Co., 30 F.Supp.2d 534 (D. Md., 1998); McRae's, Inc. v. Hussain, 105 F.Supp.2d 594 (S.D. Miss.,
2000); Lofton v. Turbine Design, Inc., 100 F.Supp.2d 404 (N.D. Miss., 2000); Citigroup v. City
Holding Co., 97 F.Supp.2d 549 (S.D.N.Y., 2000); K.C.P.L., Inc. v. Nash, 1998 WL 82367
(S.D.N.Y., 1998); Tech Heads, Inc. v. Desktop Service Center, Inc., 105 F.Supp.2d 1142 (D. Or.,
2000); Standard Knitting, Ltd. v. Outside Design, Inc., 2000 WL 804434 (E.D. Pa., 2000);
Westcode, Inc. v. RBE Electronics, Inc., 2000 WL 124566 (E.D. Pa., 2000); Harbuck v.
Aramco, Inc., 1999 WL 999431 (E.D. Pa., 1999); Renick v. Manfredy, 52 F.Supp.2d 462 (E.D.
Pa., 1999); Barrett v. Catacombs Press, 44 F.Supp.2d 717 (E.D. Pa., 1999); Blackburn v. Walker
Oriental Rug Galleries, Inc. , 999 F.Supp 636 (E.D. Pa., 1998); Brown v. Geha-Werke GmbH,
69 F.Supp.2d 770 (D.S.C., 1999); ESAB Group, Inc. v. Centricut, LLC, 34 F.Supp.2d 323
(D.S.C., 1999); Miecskowski v. Masco Corp., 997 F.Supp. 782 (E.D. Tex., 1998); Agar Corp.
Inc. v. Multi- Fluid Inc., 1997 WL 829340 (S.D. Tex., 1997); Jewish Defence Organization,
Inc. v. Superior Court, 85 Cal. Rptr. 2d 611 (Cal.App. 2 Dist., 1999); Nida Corp. v. Nida, 2000
WL 1610635 (M.D. Fla., 2000); Smith v. Hobby Loby Stores, Inc., 968 F.Supp. 1356 (W.D.
Ark., 1997); Online Partners. Com, Inc. v. Atanticet Media Corp., 2000 WL 101242 (N.D. Cal.,
2000); Quokka Sports, Inc., v. Cup Intern. Ltd., 99 F.Supp.2d 1105 (N.D. Cal., 1999);
Mallinkrodt Medical, Inc. v. Sonus Pharmaceuticals, Inc., 989 F.Supp 265 (D.D.C., 1998);
Ameritech Services, Inc. v. SCA Promotions, Inc., 2000 WL 283098 (N.D. Ill., 2000); LFG,
LLC v. Zapata Corp., 78 F. Supp.2d 731 (N.D. Ill., 1999); Biometics, LLC v. New Womyn, Inc.,
112 F.Supp.2d 869 (E.D. Mo., 2000); Decker v. Circus Circus Hotel, 49 F.Supp.2d 748 (D.N.J.,
1999); Hurley v. Cancun Playa Oasis Intern. Hotels, 1999 WL 718556 (E.D. Pa., 1999);
Grutowski v. Steamoat Lake Guides & Outfitters, Inc., 1998 WL 962042 (E.D. Pa., 1998); Fix
My PC, L.L.C. v. N.F.N. Associates, Inc., 48 F.Supp.2d 640 (N.D. Tex, 1999); Origin
Instruments Corp. v. Adaptive Computer Systems, Inc., 1999 WL 76794 (N.D. Tex., 1999);
78
knowing and repeated transmission of computer files over the Internet."361
The existence of an active site would be sufficient to establish jurisdiction
anywhere the site is accessed.362
In between, the court identified a middle
ground "occupied by interactive Web sites where a user can exchange
information with the host computer. In these cases, the exercise of
jurisdiction is determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on the Web
site."363
Although other courts quickly latched onto the Zippo framework,364
Telephone Audio Productions, Inc. v. Smith, 1998 WL 159932 (N.D. Tex., 1998); Thompson
v. Handa-Lopez, Inc., 998 F. Supp. 738 (W.D. Tex., 1998); America Online, Inc. v. Huang,
106 F.Supp.2d 848 (E.D. Va., 2000).
365. See Geist supra note 350, at 1379-80:
When the test was developed in 1997, an active Web site might have
featured little more than an email link and some basic correspondence
functionality. Today, sites with that level of interactivity would likely be
viewed as passive, since the entire spectrum of passive versus active has
shifted upward together with improved technology. In fact, it can be
credibly argued that sites must constantly re- evaluate their position on the
passive versus active spectrum as Web technology changes.
366. See Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN. L.
REV. 1193, 1226-29 (1998).
367. See David Legard, Average Cost to Build E-commerce Site: $1 Million, THE
S T A N D A R D ( M a y 3 1 , 1 9 9 9 ) , a v a i l a b l e a t < h t t p : / /
www.thestandard.com/article/article_print/0,1153,4731,00.html>, visited Mar. 31, 2001.
368. See, e.g., Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316 (9th Cir., 1998);
Nissan Motor Co. Ltd. v. Nissan Computer Corp., 89 F. Supp.2d 1154 (C.D. Cal., 2000);
Euromark Designs, Inc. v. Crate & Barrel, Ltd., 96 F. Supp.2d 824 (N.D. Ill., 2000); Neogen
Corp. v. Neo Gen Screening, Inc. , 109 F.Supp.2d 724 (W.D. Mich., 2000); People Solutions,
Inc. v. People Solutions, Inc., 2000 WL 1030619 (N.D. Tex., 2000); Uncle Sam's Safari
Outfitters, Inc. v. Uncle Sam's Navy Outfitters--Manhattan, Inc., 96 F.Supp.2d 919 (E.D. Mo.,
79
ultimately, this sliding-scale analysis has proven to be unstable and difficult
to apply. First, drawing the distinction between an active and passive site
is often problematic. For example, if my website includes only a list of
articles I have written, that site appears to be passive under the Zippo
decision. If I then include a sentence at the bottom of the site inviting
readers to e-mail their comments about my articles, or providing links to
other sites where the full text of the articles can be found, is the addition of
that extra material enough to transform my passive site into an active one?
And while the active/passive distinction was difficult to draw in 1997, when
Zippo was decided, the line between active and passive sites is even more
blurry now and is likely to become increasingly so in the future, as websites
grow ever more complex and sophisticated.365
Ultimately, most sites
probably will fall into the middle ground, and "examining the level of
interactivity and commercial nature of the exchange of information" is
unlikely to yield predictable or consistent results. Moreover, some sites that
seem passive may sell advertising based on the number of "hits" the sites
receives or collect and market data about the user,366
both of which may
seem to render the site more active.
Perhaps most importantly, few large organizations or corporations
will spend the money necessary367
to create a sophisticated website without
including some mechanism to earn money back from the site. But if all
such sites are deemed interactive under the Zippo framework, then they
will all subject the site owner to universal jurisdiction, returning us to a
solution like the one reached in Inset.
Perhaps because of these difficulties, courts already appear to be
shifting away from the Zippo approach towards a test based on the effect
of the activity within the jurisdiction.368
This test derives from the U.S.
2000); Winfield Collection, Ltd. v. McCauley, 105 F. Supp.2d 746 (E.D. Mich., 2000); Search
Force v. DataForce Intern., 112 F.Supp.2d 771 (S.D. Ind., 2000); Neato v. Great Gizmos, 2000
WL 305949 (D. Conn., 2000); Rothschild Berry Farm v. Serendipity Group LLC, 84 F.Supp.2d
904 (S.D. Ohio, 1999); Millenium Enterprises, Inc. v. Millenium Music, L.P., 33 F. Supp. 2d 907
(D. Or., 1999); Bochan v. La Fontaine, 68 F.Supp.2d 701 (E.D. Va., 1999); Blakey v.
Continental Airlines, Inc., 164 N.J. 38 (N.J. 2000).
369. 465 U.S. 783 (1984).
370. Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1486 (9th Cir.1993)
(applying Calder).
371. See, e.g., Blakey v. Continental Airlines, Inc., 164 N.J. 38 (N.J. 2000) (using
effects test to determine that jurisdiction existed over non-resident defendants who allegedly
posted defamatory messages on electronic bulletin board of their New Jersey-based employer).
372. See People Solutions, Inc. v. People Solutions, Inc., 2000 WL 1030619 (N.D.
Tex., 2000).
373. See id.
374. See Winfield Collection, Ltd. v. McCauley, 105 F. Supp.2d 746 (E.D. Mich.,
2000).
375. Id. at 751.
80
Supreme Courťs 1984 decision in Calder v. Jones,369
a suit in which a
Florida publisher allegedly defamed a California entertainer. In that case,
the Court reasoned that, because the plaintiff lived and worked in California
and would suffer emotional and perhaps professional harm there, the
publisher had deliberately caused harmful effects in California and,
accordingly, California could assert jurisdiction over the case. Thus, under
Calder's "effects test," personal jurisdiction may be based on "(1)
intentional actions (2) expressly aimed at the forum state (3) causing harm,
the brunt of which is suffered--and which the defendant knows is likely to
be suffered--in the forum state."370
Courts have applied the effects test not only to Internet libel
cases,371
but to a broad-range of other Internet-related cases as well. For
example, in a trademark suit brought against a California corporation, the
plaintiff argued that jurisdiction was appropriate in Texas because the
defendant owned an undisputedly interactive website that was accessible
in Texas.372
Although the court acknowledged the interactivity of the site,
it refused to assert jurisdiction absent evidence that residents of Texas had
actually purchased from the site.373
Likewise, in a case alleging copyright infringement in the design of
craft patterns, a Michigan plaintiff sued a Texas defendant in Michigan.374
According to the plaintiff, the Michigan court could properly exercise
jurisdiction because the defendant both maintained an interactive website
accessible to Michigan residents and had sold patterns to Michigan residents
on two occasions. Nevertheless, the court ruled that jurisdiction was not
proper in Michigan. Applying the effects doctrine, the court refused to
accept the idea "that the mere act of maintaining a Web site that includes
interactive features ipso facto establishes personal jurisdiction over the
sponsor of that website anywhere in the United States."375
Further, the
court deemed the two Michigan sales an insufficient basis for jurisdiction
because they were sold in an eBay auction and therefore the defendant had
376. See id.
377. Geist, supra note 350, at 1345-46; see also Perritt, supra note 320, at 573
("The concept of targeting is the best solution to the theoretical challenge presented by
difficulties in localizing conduct in Internet markets.").
378. Bancroft & Masters Inc. v. Augusta National Inc., 223 F.3d 1082, 1087 (9th
Cir.
2000); see also, e.g., American Information Corp. v. American Infometrics, Inc., 139 F.Supp.2d
696 D.Md.,2001 (ruling that "[a] company's sales activities focusing generally on customers
located throughout the United States and Canada without focusing on and targeting the forum
state do not yield personal jurisdiction.") (internal quotation omitted).
379. See OECD, Recommendation of the OECD Council Concerning Guidelines for
Consumer Protection in the Context of Electronic Commerce (Paris, 9 December 1999),
available at OECD <http:// www.oecd.org/dsti/sti/it/consumer/prod/CPGuidelines_final.pdf.,
visited Mar. 31, 2001) ("[B]usiness should take into account the global nature of electronic
commerce and, wherever possible, should consider various regulatory characteristics of the
markets they target.").
380. Securities and Exchange Commission, Interpretation; Statement of the
Commission Regarding Use of Internet Websites to Offer Securities, Solicit Securities
Transactions, or Advertise Investment Services Offshore (Mar. 23, 1998), http://www.sec.gov
/rules/concept/33-7516.htm :
The regulation of offers is a fundamental element of federal and some U.S.
state securities regulatory schemes. Absent the transaction of business in
the United States or with U.S. persons, however, our interest in regulating
solicitation activity is less compelling. We believe that our investor
protection concerns are best addressed through the implementation by
issuers and financial service providers of precautionary measures that are
reasonably designed to ensure that offshore Internet offers are not targeted
to persons in the United States or to U.S. persons.
See also Securities and Exchange Commission, Interpretation; Use of Electronic Media (Apr.
28, 2000), http://www.sec.gov/rules/concept/34-42728.htm (providing guidance in applying
federal securities law to electronic media).
81
no say in where the products would be sold.376
The discussion of the sales on eBay may signal yet another shift in
the case law. Instead of focusing either on the interactivity of the website
or the ultimate effect a defendanťs activities may cause in a jurisdiction,
courts may base jurisdictional decisions on whether a defendant deliberately
targets individuals in any particular state. One commentator, advocating
such a targeting inquiry, has argued:
Unlike the Zippo approach, a targeting analysis would seek
to identify the intentions of the parties and to assess the
steps taken to either enter or avoid a particular jurisdiction.
Targeting would also lessen the reliance on effects-based
analysis, the source of considerable uncertainty since
Internet-based activity can ordinarily be said to create
some effects in most jurisdictions.377
At least one Court of Appeals has embraced a targeting analysis, ruling that
jurisdiction is proper "when the defendant is alleged to have engaged in
wrongful conduct targeted at a plaintiff whom the defendant knows to be
a resident of the forum state."378
Likewise, OECD Consumer Protection
Guidelines,379
Securities and Exchange Commission regulations on Internetbased
offerings,380
the American Bar Association Internet Jurisdiction
381. HAGUE CONVE N T I O N DRAFT, supra note 269, at Art. 7, Version 0.4a
("[A]ctivity by the business shall not be regarded as being directed to a State if the business
demonstrates that it took reasonable steps to avoid concluding contracts with consumers
habitually resident in that State.").
382. American Bar Association, Achieving Legal and Business Order in Cyberspace:
A Report on Global Jurisdiction Issues Created By the Internet (2000).
383. See Geist, supra note 350, at 1384, n.224 (describing a new automatic
translation service offered by the search engine Google); see also
<http://www.google.com/machine_translation.html> (date accessed: 3 April 2001).
384. Geist, supra note 350, at 1384.
385. See supra note 268.
386. See Berne Convention, supra note 268, at art. 5(1), 1161 U.N.T.S. at 35:
Authors shall enjoy, in respect of works for which they are protected under
this Convention, in countries of the Union other than the country of
origin, the rights which their respective laws do now or may hereafter
grant to their nationals, as well as the rights specially granted by this
Convention."); see also Berne Convention, supra note 268, at art. 5(2),
1161 U.N.T.S. at 35 ("the extent of protection, as well as the means of
redress afforded to the author to protect his rights, shall be governed
exclusively by the laws of the country where protection is claimed.") It is
commonly understood that this regime "implicates a rule of territoriality."
Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088, 1097
(9th Cir. 1994) (en banc). Of course, one could read Article 5(2) to create
a rule of lex fori because the forum can be seen as "the country where
protection is claimed." Nevertheless, the accepted reading of the
82
Project, and the Hague Conference on Private International Law's Draft
Convention on Jurisdiction and Foreign Judgments381
all include references
to targeting as a basis for the exercise of jurisdiction.
Nevertheless, targeting too ultimately may prove to be an unstable
test because even if courts embrace this approach they will need to identify
criteria to be used in assessing whether a website has actually targeted a
particular jurisdiction. This will not be an easy task. For example, the
American Bar Association Internet Jurisdiction Project, a global study on
Internet jurisdiction released in 2000, referred to the language of the site as
a potentially significant way of determining whether a site operator has
targeted a particular jurisdiction.382
With the development of new language
translation capabilities, however, website owners may soon be able to
create their site in any language they wish, knowing that users will
automatically be able to view the site in the user's chosen language.383
As
one commentator notes, "[w]ithout universally applicable standards for
assessment of targeting in the online environment, a targeting test is likely
to leave further uncertainty in its wake."384
Thus, although the adaptation
process continues, it is unclear whether the results will be satisfying either
conceptually or practically.
In the area of choice of law, we can see a similar process at work.
For example, with regard to international copyright cases, Article 5 of the
Berne Convention,385
and the broader principle of national treatment, have
long established a relatively stable set of choice of law rules based upon
territoriality.386
Under this regime, courts were asked to apply the law of
provision is that it refers to the country where the infringement is alleged
to have occurred. See, e.g., Graeme W. Austin, Domestic Laws and
Foreign Rights: Choice of Law in Transnational Copyright Infringement
Litigation, 23 COLUM.-VLA J.L. & ARTS 1, 3 (1999) at 24-25 (discussing
accepted interpretations of Article 5(2)); see also Dinwoodie, supra note
271, at 533 n.196 (citing Austin).
387. See e.g., Dinwoodie, supra note 271, at 535 (" The place where an act of alleged
infringement `occurs' has become difficult to determine in the digital environment; concepts
such as `place' of publication or `country of origin' lose meaning in a global and digital world,
where geography holds less significance.").
388. 153 F.3d 82 (2d Cir. 2000).
389. See id.
390. Id. at 89-90.
391. See RESTATEMENT (SECOND) OF CONFLICTS OF LAWS §§ 6, 145, 222
(1971) (articulating the "most significant relationship" test and listing the choice of law
principles according to which courts should determine the place with the most significant
relationship to the dispute).
392. See Itar-Tass, 153 F.3d at 90-91 (following "law of the state with `the most
significant
relationship' to the property and the parties" (citation omitted)).
393. It is unclear whether the court reached this second conclusion by applying a
fixed rule of lex loci delicti or by using a broader interest analysis akin to the Second
Restatement approach. See id. at 91.
394. Even in the U.S. domestic context, scholars have criticized the Second
Restatement approach. See, e.g., William L. Reynolds, Legal Process and Choice of Law, 56
MD. L. REV. 1371, 1388-89 (1997) (summarizing scholarly criticisms of the Second
Restatement); Jeffrey M. Shaman, The Vicissitudes of Choice of Law: The Restatement (First,
Second) and Interest Analysis, 45 BUFF. L. REV. 329, 359-60 (1997) (commenting that
83
the place where the copying or other allegedly infringing act occurred. In
a world of digitaltechnology and global commerce, however, the assumption
that we can necessarily fix a place of origin or a place of infringement has
been undermined.387
In response, courts have been forced to adapt. For example, in
Itar-Tass Russian News Agency v. Russian Kurier, Inc.,388
several
Russian language newspapers located in Russia sued a U.S. corporation
that was taking articles from those newspapers, rearranging them, and
creating a Russian language newspaper for U.S. distribution.389
The
Second Circuit declined to apply exclusively the territorial place of
infringement rule derived from Article 5(2) of the Berne Convention.390
Rather, the court developed a choice of law rule as a matter of federal
common law. Looking to the Restatement (Second) of Conflicts of
Law--under which courts use the law of the place with the most significant
relationship to the parties and the transaction391
--the Second Circuit applied
Russian copyright law to the question of who holds the copyright,392
but
applied American law to the infringement question.393
Nevertheless, even the more flexible analysis of the Second
Restatement may ultimately be unsatisfying in more complex cases.
Indeed, commentators have often criticized this approach because it tends
to devolves into an unguided list of governmental interests with a conclusory
decision appended.394
Moreover, such a list will almost always include the
contacts are often "counted up...at most with conclusory and arbitrary pronouncements
concerning their relative value"); see also James A. Meschewski, Choice of Law in Alaska: A
Survival Guide for Using the Second Restatement, 16 ALASKA L. REV. 1, 19 (1999)
(complaining that lack of guidance prevents any effective restraint on judicial decisionmaking
and results in conclusory statement of the most relevant contacts).
395. See, e.g., Allarcom Pay Television Ltd. v. General Instrument Corp., 69 F.3d
381 (9th Cir. 1995) (ruling that a public performance occurs at the place or receipt of satellite
transmissions); National Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d (BNA) 1831,
1834-35 (W.D. Pa. 2000) (holding that where defendants originated the streaming of
copyrighted programming over the Internet from a website in Canada, public performances
occurred in the United States because users in the United States could access the website and
receive and view the defendants' streaming of the copyrighted material).
396. See, e.g., Antony L. Ryan, Principles of Forum Selection, 103 W. VA. L. REV.
167, 192 (2000) (providing various examples and noting that, at least in the domestic context,
there is a "marked tendency" for courts to choose to apply their own law).
397. See DAVID CAVERS, THE CHOICE OF LAW PROCESS 22-23 (1965) ( arguing
that a forum law solution makes it impossible to know what law will apply until after one acts);
see also Perry Dane, Vested Rights, "Vestedness," and Choice of Law, 96 YALE L.J. 1191
(1987) (arguing that a lex fori approach is inconsistent with the rule of law because it repudiates
the idea that laws reflect norms that exist apart from their enforcement); Alfred Hill, The
Judicial Function in Choice of Law, 85 Colum. L. Rev. 1585, 1587-1602 (1985) (describing
move away from lex fori approaches among both commentators and courts). But see Robert
A. Sedler, Interest Analysis and Forum Preference in the Conflict of Laws: A Response to the
"New Critics," 34 MERCER L. REV. 593, 595 (1983) (arguing that application of forum law
produces the most "functionally sound and fair results"); Louise Weinberg, On Departing from
Forum Law, 35 MERCER L. REV. 595, 599 (1983-84) (arguing that forum preference vindicates
widely shared policy concerns because the interests of the plaintiff and the forum are aligned).
398. See, e.g., Jane C. Ginsburg, Copyright Without Borders? Choice of Forum and
Choice of Law for Copyright Infringement in Cyberspace, 15 CARDOZO ARTS & ENT. L.J. 153,
173 (1997) ("[T]he court should either apply the law of the place of the server or of the
defendanťs domicile").
399. See supra, text accompanying note 55.
400. Scholars seeking to localize an international copyright dispute at a particular
point, such as the place of the server, have incorporated in their proposed tests a range of
caveats to prevent such "races" from occurring. See, e.g., Ginsburg, supra note 398, at 45
(providing alternative tests to be used if a country's copyright laws are not adequate). But, as
Graeme Dinwoodie has pointed out, "these (necessary) caveats inevitably detract from the gains
84
forum jurisdiction, particularly in the digital world where publication may
occur simultaneously in a number of countries.395
Thus, given that courts
tend to prefer applying their own laws,396
we may find that this flexible
approach begins to look simply like the old lex fori, where the law of the
forum jurisdiction always applied. Such a rule may encourage uncertainty
because one will not know in advance which jurisdiction's copyright law
may be applied to a given online posting or transaction.397
To combat this
uncertainty, some scholars have proposed that courts use the law of the
place where a website server is located.398
(Interestingly, this proposal
contrasts with the recent OECD tax recommendations, which take the
position that a server is not sufficient to constitute presence in a jurisdiction
for tax purposes.399
) Because websites may contain elements stored on
multiple servers, however, locating a website may be difficult. Moreover,
because servers can easily be located anywhere, such a scheme may result
in a regulatory race to the bottom.400
Thus, as with adjudicatory jurisdiction,
in certainty provided by the localizing rule. If certainty and predictability are the reasons for
adopting an arbitrary and inflexible rule, this approach becomes less attractive when the
principal advantages are imperiled." Dinwoodie, supra note 271, at 540 (footnote omitted).
401. For example, I have not detailed the various proposals about how best to
apportion taxes for Internet transactions. For a discussion of these proposals, see generally
Christopher J. Schafer V. Business Law A, Electronic Commerce 2, Taxation a) Federal
Legislation: Federal Legislation Regarding Taxation Of Internet Sales Transactions, 16
BERKELEY TECH. L.J. 415 (2001) (considering various issues and proposed standards regarding
Internet taxation); William V. Vetter, Preying on the Web: Tax Collection in the Virtual World,
28 FLA. ST. U.L. REV. 649 (2001) (surveying how state tax rules apply to Internet transactions
and suggesting options to solve Internet taxation problems); Arthur J. Cockfield, Transforming
The Internet Into A Taxable Forum: A Case Study In E-Commerce Taxation, 85 MINN. L. REV.
1171 (2001) (outlining the various regulatory efforts to tax Internet transactions); Charles E.
McClure, Jr., Taxation of Electronic Commerce: Economic Objectives, Technological
Constraints, and Tax Laws, 52 TAX L. REV. 269 (1997) (surveying the development of Internet
taxation principles, and offering proposals for reforming e-commerce taxation); see generally
RICHARD D. POMP AND OLIVER OLDMAN, STATE AND LOCAL TAXATION pp. 13-1 to 13-97
(4th ed. 2001).
85
the evolution of choice of law rules in this new environment are still a work-
in-progress.
III. The Need to Consider the Social Meaning of Legal
Jurisdiction
The ten responses discussed in Part II undoubtedly do not exhaust
the number of approaches that judges, government regulators, legislators
and academics have devised or might devise to address the challenges of
cyberspace and increasing trans-border interaction.401
More important, the
purpose of this survey is neither to embrace nor reject any of the responses
as a normative policy matter. Indeed, although I have noted some of the
pros and cons of the various suggestions, I do not intend, in the remainder
of this article, to offer an alternative policy formulation that will "solve" their
purported shortcomings, and I will therefore not be returning to most of
these specific policy issues.
Instead, by surveying this landscape of critical debate we may
emerge with two observations. First, the wide range of opinion, like the
wide range of challenges discussed in Part One, indicates that these issues
are in flux and that the time is therefore ripe for rethinking core assumptions
underlying the application of legal authority and norms across borders.
Second, and even more fundamentally, the scope of the debate suggests
that the discussion has not been framed broadly enough. While these
responses are varied (and often at odds with one another), they all seem to
revolve around either political theory questions about when a judicial or
administrative exercise of authority is legitimate, or legal policy questions
about the most efficient or effective system for solving specific legal
dilemmas. Even approaches that advocate decentralized authority (Johnson
402. For two notable exceptions within legal scholarship, see generally Terry S.
Kogan, Geography and Due Process: The Social Meaning of Adjudicative Jurisdiction, 22
RUTGERS L.J. 627 (1991) (using insights drawn from critical human geography to understand
changes in America's jurisdictional rules); Richard T. Ford, Law's Territory (A History of
Jurisdiction), 97 MICH . L. REV. 843 (1999) (describing socially constructed nature of
jurisdiction in the context of voting districts). Kogan's work, although it pre-dated the rise of
cyberspace, specifically addressed the social significance of adjudicative jurisdiction and so is
particularly relevant here. My discussion in this section is heavily indebted to Kogan's
argument.
403. ALLAN PRED , MA K I N G HISTORIES AND CONSTRUCTING HUMAN
GEOGRAPHIES 10 (1990).
86
and Post) or the creation of transnational norms (Dinwoodie and Perritt) do
so based largely on literature from political philosophy and law.
There is more to the assertion of jurisdiction or the extraterritorial
imposition of norms, however, than simply questions of political legitimacy
or efficient dispute resolution. The assertion of jurisdiction, like all legal
acts, can also be viewed as a meaning-producing cultural product. What
does it mean, after all, to say that some person, corporation, or activity is
subject to a community's jurisdiction? And how does the idea of jurisdiction
relate to conceptions of geographic space, community membership,
citizenship, boundaries, and self-definition? Although largely ignored in the
debates over Internet jurisdiction and the rise of transnational governing
bodies, these foundational issues must be considered seriously if we are to
develop a richer descriptive account of the role of legal jurisdiction in a
global era.
This Part begins to develop such an account by isolating three
specific aspects of jurisdiction that are often overlooked: the way in which
jurisdictionalrules reflect and construct social conceptions of space, the role
of jurisdictional rules in establishing community dominion over a
transgressor, and the process by which the assertion of jurisdiction
symbolically extends community membership to those brought within its
ambit. Then, Part IV deepens the inquiry by interrogating further both the
presumed tie between a physical location and a community, and the
assumption that the nation-state is the only appropriate community for
jurisdictional purposes. Only then will we be in a position to construct a
more nuanced descriptive and normative model for understanding and
addressing the globalization of jurisdiction.
A. Jurisdiction and the Social Construction of Space
It has become commonplace for cultural critics and others to
identify the ways in which social structures shape and constrain conduct;
yet, the link between social structure and physical space has received less
attention.402
Nevertheless, "[t]he production of space and place is both the
medium and the outcome of human agency and social relations . . ."403
This
404. Id.
405. Kogan, supra note 402, at 634.
406. See JOHN TOMLINSON, GLOBALIZATION AND CULTURE 4 (1999) ("In a
globalized world, people in Spain really do continue to be 5,500 miles away from people in
Mexico, separated, just as the Spanish conquistadors were in the sixteenth century, by a huge,
inhospitable and perilous tract of ocean. What connectivity means is that we now experience
this distance in different ways. We think of such distant places as routinely accessible, either
representationally through communications technology or the mass media, or physically,
through the expenditure of a relatively small amount of time (and, of course, money) on a
transatlantic flight. So Mexico City is no longer meaningfully 5,500 miles from Madrid: it is
eleven hours' flying time away.").
407. For a socio-political history of American suburbanization, see generally
KENNETH T . JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED
STATES (1985); JOEL GARREAU, EDGE CITY: LIFE ON THE NEW FRONTIER (1992).
408. See NICHOLAS K. BLOMLEY, LAW, SPACE, AND THE GEOGRAPHIES OF
POWER xi (1994) ("The legal representation of space must be seen as constituted by--and in
turn constitutive of--complex, normatively charged and often competing visions of social and
political life under law.").
409. Id. at 54.
87
cultural construction of space includes the boundaries drawn between
"public" and "private" spaces, the decisions a community makes about landuse
and zoning, the appropriation and transformation of "nature" as both a
concept and as a physical description, the local autonomy of governmental
units, the use of specialized locations for the conduct of economic, cultural,
and social practices, the creation of patterns of movement within a
community, and "the formation of symbolically laden, meaning-filled,
ideology-projecting sites and areas"404
In addition, topological space, which consists of the formal
boundary lines we have chosen, is distinctively different from social space,
which includes the meanings given to space (both local and non-local), to
the distances between delineated spaces, and to the time necessary to
traverse those distances.405
For example, a 100-mile automobile trip may
seem like a greater journey to residents of the northeast United States, who
are accustomed to relatively short distances between destinations, than to
residents of the west, where cities and towns are more dispersed. Similarly,
a 1,000-mile trip carries a very different social meaning today, in the age of
relatively inexpensive air travel, than it did a hundred years ago, even if the
topological space remains the same.406
And of course America's welldocumented
post-war demographic shift from city to suburb is not merely
a change of topology, but a politically and symbolically significant cultural
transformation.407
Moreover, the construction of legal spaces and the delineation of
boundaries is always embedded in broader social and political processes.408
"Legal categories are used to construct and differentiate material spaces
which, in turn, acquire a legal potency that has a direct bearing on those
using and traversing such spaces."409
For example, in the history of
European conquest of Australia, the naming of particular spaces--rivers,
410. See PAUL CARTER, THE ROAD TO BOTANY BAY: AN EXPLORATION OF
LANDSCAPE AND HISTORY (1988).
411. Id. at 64; see also ROBERT D. SACK, HUMAN TERRITORIALITY: ITS THEORY
AND HISTORY 6-8 (1986) (describing similarly loose conceptions of territoriality among
members of the Chippewa tribe at the time Europeans settled in the United States).
412. Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV.
295, 315 (1991) ("Since private places and public places between them exhaust all the places
that there are, there is nowhere that these actions [such as sleeping] may be performed by the
homeless person. And since freedom to perform a concrete action requires freedom to perform
it at some place, it follows that the homeless person does not have the freedom to perform
them.").
413. See, e.g., Stuart Hall, The Local and the Global: Globalization and Ethnicity,
in CULTURE, GLOBALIZATION AND THE WORLD-SYSTEM (Anthony D. King ed., 1997) ("To
be English is to know yourself in relation to the French, and the hot-blooded Mediterraneans,
and the passionate, traumatized Russian soul. You go round the entire globe: when you know
what everybody else is, then you are what they are not. Identity is always, in that sense, a
structured representation which only achieves its positive through the narrow eye of the
negative.").
414. Kogan, supra note 402, at 637.
88
mountains, capes, bays, etc.--became a central point of political contest.410
The Europeans believed that the aboriginals did not classify or name the
landscape and transformed that "spatial deficiency" into a "legal
deficiency": if the aboriginals did not name their places, their hold on it must
be tenuous and so it would not be a crime to take possession of it.411
Similarly, Jeremy Waldron has observed that increasing restrictions on the
use of public spaces for activities such as sleeping or washing means that
homeless people cannot perform those acts at all because they are denied
a place either public or private.412
The social meaning of geographical space also includes the way in
which an individual or community perceives those who are outside the
community's topological or social boundaries. While people tend to develop
attitudes of familiarity toward the spaces in which they reside and conduct
their daily activities, they may come to view unfamiliar people and locations
as alien, forbidding, or foreign. Or, alternatively, the outside "other" can be
seen as inviting, friendly, and hospitable, or as mysterious, exotic, and
romantic.413
These are just a few examples of the infinite variety of
possible attitudes one may hold towards unfamiliar social spaces. "These
attitudes will be influenced by a host of factors, including the political
governance of that `other' location, the socio-economic involvement that the
individual has on a daily basis with that other location, and the extent of
contact that a person has . . . with that other location."414
Thus, jurisdictional rules have never simply emerged from a
utilitarian calculus about the most efficient forum for adjudicating a dispute.
Rather, the exercise of jurisdiction has also been part of the way in which
societies demarcate space, delineate communities, and draw both physical
and symbolic boundaries. Such boundaries do not exist as an intrinsic part
of the physical world; they are a social construction. As a result, the choice
of jurisdictional rules reflects the attitudes and perceptions members of a
415. 95 U.S. 714 (1877).
416. See id. at 722 ("[E]very State has the power to determine for itself the civil
status and capacities of its inhabitants; to prescribe the subjects upon which they may contract,
the forms and solemnities with which their contracts shall be executed, the rights and obligations
arising from them, and the mode in which their validity shall be determined and their obligations
enforced; and also the regulate the manner and conditions upon which property situated within
such territory, both personal and real, may be acquired, enjoyed, and transferred.... [N]o State
can exercise direct jurisdiction and authority over persons or property without its territory.").
417. ROBERT H. WIEBE, THE SEARCH FOR ORDER 1877-1920, at xiii (1967).
418. Id. at 27.
419. Id. at 52-58.
89
community hold towards their geography, the physical spaces in which they
live, and the way in which they define the idea of community itself.
In order to convey this basic idea, it might be useful to tell an
admittedly over-simplified functionalist account of the change in American
jurisdictional rules over time. In this account, the territorially-based
jurisdictional principle articulated in the nineteenth century by the Supreme
Court in Pennoyer v. Neff415
--states have complete authority within their
territorial boundaries but no authority outside those boundaries416
--derives
in part from a particular understanding of social space in the United States
at the time. Historian Robert Wiebe has observed that
America during the nineteenth century was a society of
island communities. Weak communication severely
restricted the interaction among these islands and dispersed
the power to form opinion and enact public policy . . . .
The heart of American democracy was local autonomy.
A century after France had developed a reasonably
efficient, centralized public administration, Americans could
not even conceive of a managerial government. Almost all
of a community's affairs were still arranged informally.417
According to Wiebe, geographical loyalties tended to inhibit connections
with a whole society. "Partisanship . . . grew out of lives narrowly
circumscribed by a community or neighborhood. For those who considered
the next town or the next city block alien territory, such refined, deeply felt
loyalties served both as a defense against outsiders and as a means of
identification within."418
As the nineteenth century progressed, so this story goes, massive
socio-economic changes brought an onslaught of seemingly "alien"
presences into these island communities. Immigrants were the most
obvious group of outsiders, but perhaps just as frightening was the
emergence of powerful distant forces such as insurance companies, major
manufacturers, railroads, and the national government itself. Significantly,
these threats appear to have been conceived largely in spatial terms.
According to Wiebe, Americans responded by reaffirming community selfdetermination
and preserving old ways and values from "outside"
invasion.419
420. Coleman's Appeal, 75 Pa. 441, 457 (1874).
421. Id.
422. Kogan, supra note 402, at 651.
423. Id. at 652.
90
Given such a social context, it is not surprising that the jurisdictional
rules of the period emphasized state territorial boundaries. Indeed, it is
likely that the burdens of litigating in another state far exceeded simply the
time and expense of travel, substantial as those burdens were. Just as
important was the psychic burden of being forced to defend oneself in a
foreign state, which may have felt little different from the idea of defending
oneself in a foreign country. An 1874 Pennsylvania state court decision
issued shortly before Pennoyer illustrates the extent of this psychic burden.
In the case, a resident of New York had contested jurisdiction in
Pennsylvania. The court acknowledged that the Pennsylvania courthouse
was only "a few hours travel by railroad" from New York, but nevertheless
ruled that the defendant could not be sued personally, in part because
"nothing can be more unjust than to drag a man thousands of miles, perhaps
from a distant state, and in effect compel him to appear . . . ."420
The court
disregarded the relatively slight literal burden in the case at hand, and
instead focused on the specter of being "dragged" to a "distant state"
located "thousands of miles" away. The decision even equated other states
with foreign countries, referring to a "defendant living in a remote state or
foreign country . . . [who] becomes subject to the jurisdiction of this, to him,
foreign tribunal . . . ."421
These passages indicate that the psychic
significance of defending oneself in another state was at least as important
as the literal difficulties of travel.
Both the literal and psychic burdens associated with out-of-state
litigation changed as a result of the urban industrial revolution at the turn of
the twentieth century, a revolution that profoundly altered American social
space. Increasingly, most economic and governmental activities were
administered from afar by impersonal managers at centralized locations. In
such a world, another state was likely to be viewed less as a foreign country
and more as yet another distant power center, just one of many
"anonymous, bureaucratic, regulatory bodies in an increasingly complex
society."422
In addition, advances in transportation and communications helped
to weaken territoriality as the central category in which Americans
understood their space. "As long as daily lives were focused to a large
extent on the local, a state boundary symbolized the edge of the world, and
everything outside that boundary was alien and foreign."423
With increased
mobility, however, Americans regularly crossed state boundaries by train,
by car, and in the air, whichinevitably diminished the sense that other places
were alien. The rise of radio and television meant that events in other
states could become a regular part of one's daily consciousness. "Physical
distance as a social barrier began to be bypassed through the shortening of
424. JOSHUA MEYROWITZ, NO SENSE OF PLACE 116 (1985).
425. Some have conceptualized this shift as a change in the way we experience and
represent space and time. See, e.g., TOMLINSON, supra note 406, at 4-5 (describing the way
airline journeys transform "spatial experience into temporal experience); ANTHONY GIDDENS,
T HE CONSEQUENCES OF MODERNITY 64 (1990) (describing the problem of "time-space
distanciation"). In that regard, it is interesting to link this change to shifts in the arts. For
example, in visual arts, we have witnessed the fall of the linear perspective of early Renaissance
91
communication `distance.'"424
And the functional interdependence that has
characterized the United States in this century has meant that almost all of
us are regularly affected by people, institutions, and events located far
away.
In this altered social space, the call to defend a lawsuit in the courts
of another state remains an imposition, but the burdens are no longer
perceived in simple territorialterms. In other words, though many economic
and practical burdens remain, the psychic burden is no longer as strong.
Thus, it is not surprising that International Shoe substituted a flexible
"fairness" test for the more rigidly territorial scheme of Pennoyer.
As stated previously, this is obviously an over-simplified account of
the shift in American jurisdictional rules. Yet, for the purposes of this
discussion it makes the essential point clearly enough: jurisdictional rules are
always in a state of flux, and changes in political and social conceptions of
space form at least part of the context for shifts in those rules. Thus,
although some might ask why we need to rethink our ideas about legal
jurisdiction, the reality is that jurisdictional rules arealways evolving, and this
evolution has always responded to changing social constructions of space,
distance, and community.
So now the question becomes whether, with the rise of global
capitalism and the Internet, the sense of social space has shifted once again.
Arguably, peoples around the world now share economic space to a greater
degree than ever before, in large part because of the increase in online
interaction. Modern electronic communications, record-keeping, and trading
capacities have allowed the world financial markets to become so powerful
that the actions of individual territorial governments often appear to be
ineffectual by comparison. Essential services, such as computer
programming, can easily be "shipped" across national boundaries and can
even be produced multinationally. The international production and
distribution of merchandise means that communities around the country (and
even around the world) increasingly purchase the same name-brand goods
and shop at the same stores. Online communities (to the extent that we are
willing to call them communities) ignore territoriality altogether and instead
are organized around shared interests. People fly more than ever, carry
telephones and lap-tops with them as they travel, and keep in touch by e-
mail.
All of these changes radically reshape the relationship of people to
their geography.425
As Joshua Meyrowitz observed over fifteen years ago,
painting, which not coincidentally rose along with the rediscovery of Euclidean geometry and
the emergence of spatial representation, such as maps. See Denis Cosgrove, Prospect,
Perspective, and the Evolution of the Landscape Idea, 10 TRANSCRIPTS OF THE INSTITUTE
OF BRITISH GEOGRAPHERS 45-62 (1985). Beginning in the late nineteenth century,
impressionists "fragmented light (and thus time)." Roger Friedland & Deirdre Boden, NowHere:
An Introduction to Space, Time and Modernity, in NO W HERE: SPACE , T IME AND
MODERNITY 1, 2 (Roger Friedland & Deirdre Boden eds., 1994). Then, postimpressionists such
as Cezanne built " a new language, abandoning linear and aerial perspective and making spatial
dispositions arise from the modulations of color." Charles Taylor, SOURCES OF THE SELF:
T HE MAKING OF THE MODERN IDENTITY 468 (1989). The cubists went still further,
"providing simultaneous images of the same moment from different points in space and multiple
views of a single scene at various points in time." Friedland & Boden, supra, at 2; see also
Stephen Kern, Cubism, Camouflage, Silence, and Democracy: A Phenomenological Approach,
in NOWHERE: SPACE , TIME AND MODERNITY, supra, at 163. Likewise the development of
the modern novel, with books such as Remembrance of Things Past, Finnegan's Wake, and Mrs.
Dalloway, also mined changes in the equation between space and time.
426. MEYROWITZ, supra note 424, at 115.
427. See id. at 116.
428. Id.
429. Id. at 117.
430. Cf. GIDDENS, supra note 425, at 65 ("The development of globalised social
relations probably serves to diminish some aspects of nationalist feeling linked to nation-states
(or some states) but may be causally involved with the intensifying of more localised nationalist
sentiments.")
431. Doreen Massey refers to this as the "power geometry of time­space
compression." See MASSEY, supra note 24, at 149 (1994). She contrasts those who are "in
charge" of time-space compression--"the jet-setters, the ones sending and receiving the faxes
and the e-mail, holding international conference calls...distributing the films, controlling the
news, organizing the investments"--with those who do a lot of physical moving, but are not "in
92
electronic media create "a nearly total dissociation of physical place and
social `place.' When we communicate through telephone, radio, television,
or computer, where we are physically no longer determines where and who
we are socially."426
Meyrowitz pointed out that, historically, communication
and travel were synonymous, and it was not until the invention of the
telegraph that for the first time text messages could move more quickly than
a messenger could carry them.427
Thus, "informational differences between
different places began to erode."428
Moreover, many of the boundaries that
define social settings by including and excluding participants--including
walls, doors, barbed wire, and other physical and legal barriers--are less
significant in a world where "the once consonant relationship between
access to information and access to places has been greatly
weakened...."429
Given such changes, it is possible that the psychic burden of foreign
jurisdiction is less significant today because of our increased contact with
foreign places. On the other hand, we may feel the need to cling even more
tenaciously to localism in the face of the encroaching global economic
system.430
Moreover, the "we" in this story is problematic. After all,
different social groups, and different individuals, have very different degrees
of exposure to and control over global flows of information, capital, and
human migration.431
Nevertheless, the important point is that if jurisdictional
charge" of the process in the same way. Id. These people include those such as undocumented
migrant works crossing borders illegally or those who lose their jobs to less expensive labor
abroad, or those whose livelihood is affected by global currency fluctuations. Thus, social
conceptions of space, distance, and community definition are, of course, themselves varied and
contested.
432. See Paul Schiff Berman, An Observation and a Strange But True "Tale": What
Might the Historical Trials of Animals Tell Us About the Transformative Potential of Law in
American Culture?, 52 HASTINGS L.J. 123 (2000); Paul Schiff Berman, Rats, Pigs, and Statues
on Trial: The Creation of Cultural Narratives in the Criminal Prosecution of Animals and
Inanimate Objects, 69 N.Y.U. L. REV. 288 (1994).
93
rules both reflect and construct social space, further investigation is needed
in order to better comprehend the relationship between community
affiliation, physical location, and personal identity in a world where the
importance of territorial borders and geographical distance are being
challenged.
B. Jurisdiction and the Assertion of Community Dominion
When a transgressor behaves in some way contrary to society's
moral code, the community can come to view the transgressor in one of two
ways. First, the community can close ranks by defining itself in opposition
to the transgressor and by treating the transgression purely as an external
threat. Or, second, the community can claim dominion over the
transgression by conceptualizing the transgressor as a member of the
community who has committed what might be considered an internal
offense. We may liken these two strategies to the difference in the
responses of the United States to the 1993 bombing of the World Trade
Center in New York City and to the subsequent attack on the same building
in September 2001. The recent attack was seen as an offense perpetrated
by an outsider to be fought in a "war" on terrorism. With the 1993 bombing,
however, although at least some of the attackers were foreign nationals,
their criminal prosecution reflected a conception of the perpetrators as
community members to be punished internally.
The definition of a threat as internal or external is, in part, a
question of jurisdiction. When a community exercises legal jurisdiction, it
is symbolically asserting its dominion over an actor. This jurisdictional reach
can serve to transform what otherwise might have been considered an
external threat into an internal adjudication. Accordingly, the assertion of
jurisdiction can be seen as one way that communities domesticate chaos.
I have written previously about the surprisingly widespread and
elaborate practice in medieval Europe and ancient Greece of putting on trial
animals and inanimate objects that caused harm to human beings.432
Although such trials may seem far removed from any discussion of
contemporary jurisdictional rules, I believe they illuminate the symbolic
content of such rules. In deciding how to respond to acts of violence or
433. Nicholas Humphrey, Introduction, in E.P. EV A N S, T HE CRIMINAL
PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS at xxv. (Paperback ed. 1987; 1907).
434. Indeed, in at least one instance, when a hangman, without legal authority, killed
a pig at the gallows after it had bitten the ear off a child, the community viewed the hangman's
act as being to "the disgrace and detriment of the city" and forced the hangman to flee the
town. EVANS, supra note 433, at 146-47. Apparently, an execution without a formal judicial
ritual was intolerable.
94
depredation caused by animals, communities were faced with a choice of
whether to view the acts as internal or external threats. Random acts of
violence caused by insensate agents undoubtedly brought a deep feeling of
lawlessness: not so much the fear of laws being broken, but the far worse
fear that the world might not be a lawful place at all.433
To combat such a
fear, it may have been essential to view the animals not as uncontrollable
natural forces belonging to the outside world, but as members of the
community who could actually break the community's laws. By asserting
dominion over the animals, members of communities could assure
themselves that, even if the social order had been violated, at least there
was some order, and not simply undifferentiated chaos.
The scrupulous concern for according due process to animal
transgressors can be seen as a necessary part of restoring this sense of
social order. After all, simply lashing out to destroy the animal would
continue to imply that the animal was an uncontrollable "other," a part of the
"natural" world that could not be reasoned with or domesticated. Such
"unlawful" punishment might even mean that the community had
symbolically succumbed to the disorder of the natural world and that it was
now propelled into an ongoing war with forces of darkness it could not
control. Just as retaliatory acts of a lynch mob might not restore a true
sense of order to a community, so too punishment of animals without legal
procedures could well have increased a sense of impending chaos.434
Instead, the trials implicitly adopted a narrative asserting that
animals, along with human beings, were part of a community and subject
to universal norms of justice. Paradoxically, even though the trials often
resulted in the execution of the individual animal, the proceedings, by their
very nature, first insured that the animal was conceptualized as a member
of the community.
Just as the animal trials implicitly communicated a symbolic
message that nonhuman transgressors were nevertheless subject to human
control, so too our contemporary notions of jurisdiction continue to be linked
to how we define the limits of the community and who should be within its
dominion. This exercise of jurisdiction, in and of itself, can be part of the
process of healing after the breach of a social norm. For example, a person
injured by a defective product may feel powerless to affect the behavior of
a distant, seemingly uncontrollable corporation. Indeed, while animals may
have been viewed as an uncontrollable "other" in medieval Europe, the
products of global capitalism today likewise may seem to be external forces
435. See Guyora Binder, Representing Nazism: Advocacy and Identity at the Trial of
Klaus Barbie, 98 YALE L. J. 1321, 1322 (1989) (describing intent of trial as "pedagogical").
436. Such e-commerce issues have caused the European Union to change course
several times in recent years regarding jurisdiction over Internet sales. See supra text
accompanying notes 49-51.
95
of destruction that obey only their own law. By bringing the corporation
within localjurisdiction, the individualand the community may feel they have
regained some control over their world.
Finally, the need to assert community dominion may also be a
significant part of the desire to use legal and quasi-legal proceedings to
respond to atrocities such as war crimes or crimes against humanity. For
example, the trial of accused Nazi war criminal Klaus Barbie, held in
France several years ago, arguably was concerned less with punishing the
individual (who, after all, was extremely old and in failing health at the time
of the trial), than about asserting France's authority and sense of control
after a horrific and chaotic human tragedy.435
The rise of online communication may create increased pressure to
assert community dominion over the activities of outsiders. A foreign
website can easily breach community boundaries and threaten community
order. For example, material that a community might wish to ban
nevertheless may be readily accessible from websites outside the bounds of
that community. Likewise, a community that adopts strict consumer
protection laws to regulate corporate activity may feel threatened when
outside businesses can ignore the local laws through Internet sales.436
These "external" threats appear to flout local norms.
It is against this backdrop that we may understand the seemingly
extreme position of the district court in the Instruction Set case discussed
earlier in this article. There the court ruled that, if an individuaľs website
is accessible in a community, then the community can claim dominion over
that individual. Similarly, the French court in the Yahoo! case saw the
website as a force that had "entered" France and was subject to the
community's laws.
Thus, the impulse to assert jurisdiction over an outsider who
"invades" a community via the Internet is tied to the need to assert dominion
in order to domesticate external chaos. On the other hand, the jurisdictional
puzzle will look quite different if online interaction is conceived not as
foreign websites "sending" information into a community, but rather as
members of a community choosing to "travel" to a foreign site to obtain
information. Accordingly, linguistic metaphors for conceptualizing online
interaction may also help determine the way people construct intuitions
about jurisdictional questions.
437. For example, truth commissions have been established in countries including
Argentina, Bolivia, Chile El Salvador, Guatamela, Haiti, the Phillipines, Rwanda, Somalia South
Africa, Uganda, Uruguay. See PRISCILLA B. HAYNER, UNSPEAKABLE T RUTHS:
CONFRONTING STATE TERROR AND ATROCITY 291-97 (2001) (listing 20 truth commissions
established since 1982); Michael P. Scharf, The Case For A Permanent International Truth
Commission, 7 DUKE J. COMP. & INŤL L. 375, 379 (1997); MARTHA MINOW, BETWEEN
VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS
VIOLENCE 53-54 (1998);. Indeed, "truth commissions have proliferated, and now every nation
emerging from dictatorship or war wants one. This year Nigeria, Ghana, Sierra Leone, Peru,
Panama, East Timor, Yugoslavia, Bosnia and South Korea all began commissions or have them
under way." Tina Rosenberg, Designer Truth Commissions, N.Y. TIMES, Dec. 9, 2001 (late
edition), available at LEXIS. In addition, "there is pressure for commissions in Mexico, Bosnia,
Serbia, Ghana and Burundi. Canada is concerned about the way it has treated native peoples and
may use a committee to air the subject." Iťs Time For A Good National Confession; Truth
96
C. Jurisdiction and the Extension of Community Membership
The previous section discussed how the exercise of jurisdiction
functions in part as a symbolic assertion of community dominion. A
corollary to this observation is that the exercise of jurisdiction also
symbolically extends a form of community membership. As discussed
above, a true outsider is either fought as an external threat or ignored
entirely. By exercising jurisdiction, a community constructs a narrative
whereby the outsider is not truly an outsider, but is in some way a member
of that community and subject to its norms.
A rather extreme example of this phenomenon is the death
sentence issued in the Islamic world against author Salmon Rushdie.
Chances are that if I had written the same novel as Rushdie, I would not
have been treated in the same way. Instead, it is likely that I would have
been dismissed as a total outsider or targeted in an ad hoc fashion as a
purely external threat. The death sentence therefore reflects the fact that
Rushdie was considered a member of the Islamic community. Even this
violent exercise of jurisdiction acted in part to extend community
membership.
Similarly, by prosecuting war criminals we are insisting that the
defendants are members of the world community. The assertion of
jurisdiction therefore can be seen as an educative tool and not simply an
exercise of coercive power. The community, in effect, tells the defendants
that they share a membership bond with the rest of the world and therefore
cannot simply impose their will with impunity. Meanwhile, the assertion of
jurisdiction also implicitly delivers a message to the public at large that the
defendants are neither sub-human nor the product of chaotic fate, but are
instead members of the world community to be considered in their full
humanity and punished according to human law.
This idea of jurisdiction as the assertion of community membership
may also have relevance in evaluating the usefulness of alternative legal
procedures aimed at restorative justice, such as the growing use of truth
commissions as a mechanism for societal reconciliation.437
For example,
Commissions To Heal War Atrocities, NATIONAL CATHOLIC REPORTER, June 15, 2001,
available at LEXIS; see also Hayner, supra, at 5 (describing the possibility of truth commissions
in Indonesia, Colombia, and Bosnia).
438. See Roland Acevedo, Thoughts of an Ex-Jailhouse Lawyer, N.Y. L. J. (Aug. 5
1998) at 2 (describing the psychological importance for prison inmates of being able to bring
a lawsuit in court even if ultimately unsuccessful); .
439. But see David Garland, The Culture of Control: Crime and Social Order in
Contemporary Society 3 (2001) (charting the retreat since the early 1970s in the United States
and Britain from a concern for criminal rehabilitation to an "official policy of punitive
sentiments and expressive gestures that appear oddly archaic and downright anti-modern").
97
the Truth and Reconciliation Commission (TRC) proceedings in South
Africa have attempted to restore psychic membership in the South African
community to both victims and perpetrators. The TRC required that those
perpetrators seeking amnesty first acknowledge the community's
jurisdiction by appearing before the Commission, and then describe their
misdeeds to the entire country. Likewise, victims who for years were not
recognized as full-fledged members of the South African community were
given a forum to speak about their pain and enter into the community's legal
system instead of remaining outside of it. The TRC proceedings, therefore,
implicitly expressed the hope that victims, perpetrators, and spectators could
all be integrated into the new South African community.
Even in more commonplace legal proceedings, the idea of
jurisdiction as a way of asserting community membership may be important.
For example, while a community may need to assert its dominion over the
products of a distant corporation in order to feel some control over
seemingly random misfortune, it may also be that, because of the potential
exercise of local jurisdiction, a multi-national corporation comes to conceive
of itself as a corporate citizen of many different localities. Accordingly, the
exercise of jurisdiction may encourage corporations to rethink their sense
of responsibility to communities far beyond the boundaries of their corporate
headquarters.
In addition, the ability to assert the jurisdiction of a court may give
people some sense of their own membership in the community. A prison
inmate bringing a civil rights action against an abusive guard, for example,
may feel vindicated simply by the fact that he or she is able to invoke the
jurisdiction of a court. Regardless of outcome, the fact that the inmate's
grievance is aired and considered, however briefly, may give a marginal
member of society more of a sense of community affiliation.438
As a result,
the assertion of community dominion may be beneficial both for the
community, which can assert its control over otherwise uncontrollable
behavior, and for the individual, who achieves a form of community
membership through the legal process. Even a criminal defendant is
implicitly deemed to be a member of the community who has gone astray
(and therefore retains certain rights), rather than a purely external pariah
(who has none).439
98
The assertion of community membership is relevant to discussions
of Internet jurisdiction as well. As discussed previously, the growth of
electronic communications is closely linked to our increasing global
economic and psychological interdependence. Online interaction contributes
to our awareness of outsiders and our sense of connection with them.
People develop friendships and business relationships regardless of physical
proximity; they may even fall in love online. Many of the psychic bonds that
in a previous era were shared only within the confines of one's local
community now stretch far beyond any single geographical location. Given
this change in economic and psychological interdependence, it would not be
surprising to see the definition of community membership change as well.
And, if jurisdiction is one of the ways we express our intuitions about
community membership, then jurisdictional rules, in turn, must evolve.
Otherwise, we will risk being trapped in a legal doctrine that no longer
represents the reality of modern life, just as the U.S. was during the first
half of the twentieth century, when courts struggled to expand the strict
territorial rule of Pennoyer.
*****
Having identified three ways in which the assertion of jurisdiction
both constructs and reflects social meaning, it remains to investigate more
fully to what extent accepted notions of legal jurisdiction actually accord
with the social meanings at play in the contemporary world. Territoriallyfixed
boundaries remain the primary way of differentiating jurisdictional
space, and nation-states remain the primary jurisdictional community. How
well does this legal conception actually map onto social space? The answer
to such a question cannot be left in the legal arena, where the discussion is
often limited to debates about historical precedent, political philosophy, or
economic efficiency. Instead, the relationship between jurisdiction and
social understandings of space, borders and community is a topic that should
engage theorists from a variety of disciplines, who might help forge a more
complex account of the world onto which jurisdictional rules are imposed,
and who might point the way to alternative conceptions of jurisdiction that
allow for a more pluralist understanding of the variety of community
affiliations people experience in their lives. This Article now turns to
consider some of this scholarship in order to challenge the authority of
physical location, territorial boundaries, and nation-state sovereignty that is
usually assumed in contemporary jurisdictional schemes.
440. See generally Ford, supra note 402.
99
IV. The Nation-State and the Social/Historical
Construction of Space, Community, and Borders
This Part considers the vast literature in anthropology, sociology,
political science, and cultural studies concerning conceptions of borders,
territoriality, nation-state sovereignty, and the cultural construction of place
and belonging. First, I will address the assumption that there is somehow
a "natural" tie between a culturally or ethnically unified community and a
physical location, and suggest that social and political processes tend to
construct ideas of physical location rather than vice-versa. Therefore, no
jurisdictional scheme is necessarily more "natural" than any other. Second,
I will survey the historical rise of the modern conception of the nation-state,
revealing that the idea of sovereign nation-states operating within fixed
territorial boundaries is a relatively recent development and a result of
specific historical and politicalprocesses. Third, I will explore in more detail
the idea of community itself, as well as the ways in which we might think
of the nation-state as an imagined community built on a set of narrative
constructions. Fourth, I consider several forms of community affiliation that
offer alternatives to the nation-state.
Taken together, this literature challenges any idea that national
boundaries are somehow a natural or inevitable jurisdictional construct.
Instead, these authors interrogate assumptions about identity, territoriality,
community, and sovereignty, and reveal that the straight-forward tie
between geographical boundaries, community, personal identity, and nationstate
sovereignty is inevitably problematic, contingent, socially-constructed,
and contested. The analyses suggest that the conception of territoriallybased
jurisdiction is not an inevitable fixture of political organization. As a
result, even this necessarily brief overview opens space for creatively
imagining more pluralistic conceptions of jurisdiction that will attend to the
wide variety of ways in which people construct community affiliation and
identity.
A. The Unmooring of Cultures, Peoples, and Places
Legal discussions of jurisdiction are often predicated on a seemingly
unproblematic division of space, and particularly on the idea that societies,
nations, and cultures occupy "naturally" discontinuous spaces. This
assumption ignores the possibility that territorial jurisdiction often produces
political and social identities rather than reflecting them.440
As Lefebvre
has observed:
Space is not a scientific object removed from ideology or
politics; it has always been political and strategic. If space
441. H. Lefebvre, Reflections on the Politics of Space, ANTIPODE (Vol. 8, No. 2),
30, 36 (1979).
442. SACK, supra note 411, at 5.
443. It is the socially constructed nature of territoriality that permits theorists to
discuss "deterritorialization" with respect to globalizing processes. See generally Appadurai,
supra note 6; NESTOR G. CANCLINI, ET AL., HYBRID CULTURES: STRATEGIES FOR
ENTERING AND LE A V I N G MODERNITY (1995); Z. MI L N A R, GLOBAL I Z A T I O N A N D
T ERRITORIAL IDENTITIES (1992); JAMES LULL, MEDIA, COMMUNICATION, CULTURE: A
GLOBAL APPROACH (1995); MI K E FEATHERSTONE, UNDOING CULTURE (1995); ARMAND
MATTELART, ET AL., MA P P I N G W ORLD COMMUNICATION (1994); DAVID MORLEY &
KEVIN ROBBINS, SPACES OF IDENTITY: GLOBAL MEDIA, ELECTRONIC LANDSCAPES, AND
CULTURAL BO UNDARIES (1995); SERGE LATOUCHE, T HE W ESTERNIZATION OF THE
WORLD (Rosemary Morris trans., 1996).
444. Id. at 2.
445. See Akhil Gupta & James Ferguson, Beyond "Culture": Space, Identity, and the
Politics of Difference, in CULTURE, POWER, PLACE, supra note 3, at 33, 35 [hereinafter Gupta
& Ferguson, Beyond "Culture"]; see also LIISA H. MALKKI, PURITY AND EXILE: VIOLENCE,
MEMORY, AND NATIONAL COSMOLOGY AMONG HUTU REFUGEES IN TANZANIA 5 (1995)
(referring to "ways in which the contemporary system of nation-states composes a hegemonic
topography"); Ford, supra note 402, at 859 ("The ideological foundation of nation-states is
primarily that of organicism; nations are thought to represent "a people" who are both
distinctive and relatively homogeneous. The French are united not only by language but by
something called "culture": a set of practices, significant artifacts, beliefs, styles, a certain je ne
sais quoi.").
446. See Gupta & Ferguson, Beyond "Culture," supra note 445, at 40.
100
has an air of neutrality and indifference with regard to its
contents and thus seems to be "purely" formal, the epitome
of rational abstraction, it is precisely because it has already
been occupied and used, and has already been the focus of
past practices.... Space has been shaped and moulded
from historical and natural elements, but this has been a
political process. Space is political and ideological. It is a
product literally filled with ideologies.441
Indeed, the idea of territoriality itself--which we can think of as a
geographic strategy to control people and things by controlling area442
--is
not biologically motivated, but is instead socially rooted.443
Thus,
conceptions of territoriality depend on how people use land, how they
organize themselves in space, and how they give meaning to place.444
Absent a rigorous attempt to develop a social understanding of how space
is actually constructed, the power of topography tends to conceal the
topography of power.445
In recent years, anthropologists and others have increasingly
challenged the assumed correlation between a people, a culture, and a
physical place. In doing so, they reject two related "naturalisms." First,
they argue that we cannot necessarily assume that a culturally unitary group
(a "tribe" or "people") is naturally tied to "its" territory. Second, they reject
the national habit of taking the association of citizens of states and "their"
territories as natural.446
447. See id. at 34. See also Ford, supra note 402, at 866-67 (linking the emergence
of jurisdiction to the development of the science of cartography).
448. Gupta & Ferguson, Beyond "Culture," supra note 445, at 40.
449. Id.
450. Id. at 34.
451. Ford, supra note 402, at 854.
452. See, e.g., Ellen C. Semple, The Influences of Geographic Environment on Law,
State, and Society, in FORMATIVE INFLUENCES OF LEGAL DEVELOPMENT 215 (A. Kocourek
& J.H. Wigmore eds., 1918) ("People develop their customs, traditions, political organizations,
and laws based on their geographic location. For example, civilizations that develop in an
isolated locale will develop much differently than civilizations that develop in areas which are
more suitable for commerce.").
453. See BLOMLEY, supra note 408, at 42 ("Recent geographic scholarship...has
adopted what might be regarded as a relational view of space. Drawing on those such as
Lefebvre, some theorists regard space as both socially produced and as socially constitutive, and
as deeply implicated in power relations."). For examples of such critical geography, see Doreen
Massey, Politics of Space/Time, NEW LEFT REVIEW, No. 196, 65-84 (1992); ALLAN PRED,
supra note 403; Alan Pred, Place as Historically Contingent Process: Structuration and the
Time-Geography of Becoming Places , ANNALS OF THE ASS'N OF AM. GEOGRAPHERS Vol.
74, No. 2, 279 (1984); EDWARD W. SOJA, POSTMODERN GEOGRAPHIES: THE REASSERTION
OF SPACE IN CRITICAL SOCIAL THEORY (1989); J. AGNEW, PLACE AND POLITICS: THE
GEOGRAPHICAL MEDIATION OF STATE AND SOCIETY (1987); N. Thrift, On the
Determination of Social Action, in SPACE AND TIME, ENVIRONMENT AND PLANN I N G , D:
SOCIETY AND SPACE 1, 23-57 (1983); ALLAN PRED & MICHAEL JOHN WATTS, REWORKING
101
Both of these "naturalisms" are difficult to shake because they are
so subtly ingrained in the modern consciousness. For example, simply the
fact that contemporary maps refer to a collection of "countries" presents a
picture of fragmented space, where different colors represent different
national societies, and each society seems "rooted" in its proper place.447
Looking at such maps, "schoolchildren are taught such deceptively simplesounding
beliefs as that French is where the French live, America is where
Americans live, and so on."448
And yet, we all know that not only
Americans live in America, and, of course, the very question of what
constitutes a "real American" is contested and variable. Nevertheless, we
assume a natural association of a culture ("American culture"), a people
("Americans"), and a place ("the United States of America"). Thus, we
"present associations of people and places as solid, commonsensical, and
agreed on, when they are in fact contested, uncertain, and in flux."449
This
naturalization of jurisdiction means that space itself comes to be seen as a
kind of "neutral grid on which cultural difference, historical memory, and
societal organization is inscribed."450
As a result, although the social and
political construction of space is a central organizing principle in law, the
constructed nature of the enterprise tends to disappear from analytical
purview. As Richard Ford has observed, "jurisdictional space may serve to
obscure social relations and the distribution of resources."451
Geographers, though they too historically tended to assume a
"natural" bond between a people, the land, and a set of legal institutions,452
are increasingly recognizing the power and politics of the construction of
space in society453
as well as the symbolic significance of maps.454
Indeed,
MODERNITY: CAPITALISMS AND SYMBOLIC DI S C O N T E N T ( 1 9 9 2 ) ; T H O N G C H A I
W INICHAKUL, SIAM MAPPED: A HISTORY OF THE GEO-BODY OF A NATIO N (1994);
CULTURAL EN C O U N T E R S W I T H T H E ENVIRONMENT: ENDURING AND EV O L V I N G
GEOGRAPHIC THEMES (Alexander B. Murphy & Douglas L. Johnson eds. 2000).
454. See, e.g., Alan Henrikson, The Power and Politics of Maps, in REORDERING
THE WORLD, supra note 7, at 49; WINICHAKUL, supra note 453, at 129-30 ("[Mapping]
became a lethal instrument to concretize the projected desire on the earth's surface. . . .
Communication theory and common sense alike persuade us that a map is a scientific
abstraction of reality. A map merely represents something which already exists objectively.
[But at times] this relationship was reversed. A map anticipated a spatial reality, not vice versa.
In other words, a map was a model for, rather than a model of, what it purported to represent.").
455. Diane M. Bolz, "Follow me...I am the earth in the palm of your hand,"
SMITHSONIAN 112 (Feb. 1993) (quoting Denis Wood); see also generally Denis Wood, T H E
POWER OF MAPS (1992).
456. S.W. Boggs, Cartohypnosis, 1 5 DE P ' T OF STATE BULL. 1119-1125 (Dec. 22,
1946); see Ford, supra note 402, at 856 ("[J]urisdiction is a function of its graphical and verbal
descriptions; it is a set of practices that are performed by individuals and groups who learn to
`dance the jurisdiction' by reading descriptions of jurisdictions and by looking at maps.").
457. Henrikson, supra note 454, at 59.
458. Id.
459. See id.
460. Ford, supra note 402, at 853.
461. See J.B. Harley, Silences and Secrecy: The Hidden Agenda of Cartography in
Early Modern Europe, 40 IMAGO MUNDI 65 (1988).
462. Henrikson, supra note 454, at 59.
463. See Harley, supra note 461, at 66.
464. Henrikson, supra note 454, at 59.
102
maps are often persuasive precisely because, though they are always an
attempt to portray the world in a specific way, that interest tends to be
masked.455
In the thrall of such "cartohypnosis," people "accept
unconsciously and uncritically the ideas that are suggested to them by
maps."456
Maps often function as "almost the perfect representation of the
state."457
Most maps both evenly cover the territory of a country and
hierarchically organize it with the most significant places symbolically at the
center and "states on the periphery marked down, through the use of
symbols, as inferior orders of government."458
In addition, many social and
cultural realities, such as ethnic or religious clusters, may not be recognized
on state-sponsored maps at all.459
After all, jurisdictional lines define an
abstract area that is conceived of "independently of any specific attribute
of that space."460
These cartographic "silences"461
may be the result of
"deliberate exclusion, willful ignorance, or even actual repression."462
For
example, the removal or alteration of the place names of conquered peoples
or minority groups establishes a silence of subordination.463
Similarly, "the
state projection of geometric designs throughout a country in the form of
straight-line jurisdictional boundaries, transnational highways, and preserves
of one kind or another--thus establishing `order upon the lanď--can also
produce what might be termed geographic silences, or the structural
subordination of the natural landforms that shape human communities."464
In short, cartography has always been "a teleological discourse, reifying
465. J.B. Harley, MAPS, KNOWLEDGE, AND POWER 302-03.
466. See, e.g., ARNO PETERS, THE EUROPE-CENTERED CHARACTER OF OU R
GEOGRAPHICAL VIEW OF THE WORLD AND ITS CORRECTION; Arthur H. Robinson, Arno
Peters and His New Cartography, THE AMERICAN CARTOGRAPHER 104 (October 1985); see
also Henrikson, supra note 454, at 63-64 (describing controversy).
467. See J.M. ROBERTS, THE TRIUMPH OF THE WEST 127 (1985) ("Maps...are
always more than mere factual statements. They are translations of reality into forms we can
master; they are fictions and acts of imagination communicating more than scientific data. So
they reflect changes in our pictures of reality.").
468. See Akhil Gupta & James Ferguson, Culture, Power, Place: Ethnography at the
End of an Era, in CULTURE, POWER, PLACE, supra note 3, at 1, 1 [hereinafter Gupta &
Ferguson, Ethnography]; see also ULF HANNERZ, T RANSNATIONAL CONNECTIONS:
CULTURE, PEOPLE, PLACES 20 (1996) ("The idea of an organic relationship between a
population, a territory, a form as well as a unit of political organization, and one of those
organized packages of meaning and meaningful forms which we refer to as cultures has for a long
time been an enormously successful one, spreading throughout the world even to fairly unlikely
places, at least as a guiding principle."); GEORGE W . STOCKING, JR., RACE, CULTURE, AND
EVOLUTION: ESSAYS IN THE HISTORY OF ANTHROPOLOGY 202-03 (1982).
469. Gupta & Ferguson, Ethnography, supra note 468, at 2.
470. See, e.g., ULF HANNERZ, TRANSNATIONAL CONNECTIONS: CULTURE,
PEOPLE, PLACES 8 (1996) ("As people move with their meanings, and as meanings find ways
of traveling even when people stay put, territories cannot really contain cultures."); Appadurai,
supra note 6, at 33 (proposing a set of non-territorial "scapes" to replace "landscapes" as fields
of inquiry); see also T OMLINSON, supra note 406, at 106-49 (discussing the mundane ways in
which deterritorialization is experienced in everyday life).
103
power, reinforcing the status quo, and freezing social interaction within
charted lines."465
As contemporary debates about the distortions caused by
various "projections" of the world make clear,466
our cartographic
representations are socially constructed and politically fraught.467
Anthropologists, no less than cartographers, have challenged the
supposedly natural correspondences between space and people.
Historically, anthropologists focused on the idea of "cultures."
Nevertheless, as in assumptions about legal jurisdiction or in the structure
of map-making, the anthropological interest in culture sprang from the idea
that a world of human differences can be conceptualized as a diversity of
separate societies each with its own culture. In anthropology, this central
assumption made it possible, beginning in the early years of the twentieth
century, to speak not only of "culture," but of "a culture." The assumption
was that there were separate, individuated worldviews that could be
associated with particular "peoples", "tribes", or "nations."468
This individuated conception of community, still so powerful in legal
discussions, no longer fits the understanding of anthropologists, or the
practice of ethnography. "In place of such a world of separate, integrated
cultural systems...political economy turned the anthropological gaze in the
direction of social and economic processes that connected even the most
isolated of local settings with a wider world."469
As many commentators
have observed, cultural difference no longer can be based on territory
because of the mass migrations and transnational culture flows of late
capitalism.470
Thus, the task is to understand "the way that questions of
471. Gupta & Ferguson, Ethnography, supra note 468, at 3; see also Austin Sarat &
Thomas R. Kearns, The Unsettled Status of Human Rights: An Introduction, in HUMAN
RIGHTS: CONCEPTS, CONTESTS, CONTINGENCIES (Austin Sarat & Thomas R. Kearns eds.
2001) 13 (describing " a new understanding of culture in which awareness of internal plurality,
fragmentation, and contestation has replaced former tendencies to speak of cultures as unified
wholes").
472. Ulf Hannerz, Notes on the Global Ecumene, PUBLIC CULTURE, vol. 1, No. 2,
at 66 (1989); Arjun Appadurai & Carol Breckenridge, Editors' Comments, PUBLIC CULTURE,
vol. 1, No. 1, at 1 (1988); Appadurai, supra note 6; Robert Foster, Making National Cultures
in the Global Ecumene, 20 ANN. REV. OF ANTHROPOLOGY 235 (1991).
473. Ulf Hannerz, The World in Creolisation, AFRICA, vol. 57, no. 4, at 546 (1987).
474. GIDDENS, supra note 425, at 64 (1990).
475. Gupta & Ferguson, Ethnography, supra note 468, at 4.
476. Id.
477. See Friedland & Boden, supra note 425, at 42 ("The circulation of populations
and symbols is progressively undercutting the essential relation between territory and culture,
the link between place and identity.").
478. Id.
479. See Ford, supra note 402, at 854 (noting that "jurisdiction tends to present
social and political relationships as impersonal" because authority is not defined by "status
relationships such as caste, race, religion or title").
480. David H. Kaplan, Territorial Identities and Geographic Scale, in NESTED
IDENTITIES 31, 35.
104
identity and cultural difference are spatialized in new ways."471
Accordingly, anthropologists have argued that we live increasingly
in the "global cultural ecumene"472
of a "world in creolization."473
Similarly,
sociologists have attempted to replace their traditional emphasis on bounded
"societies" with "a starting point that concentrates upon analysing how
social life is ordered across time and space...."474
In both disciplines,
therefore, we see increasing calls to explore the "intertwined processes of
place making and people making in the complex cultural politics of the
nation-state."475
This perspective permits us to understand that cultures (or
communities) are no longer fixed in place (if indeed they ever were).
Rather, "all associations of place, people, and culture are social and
historical creations to be explained [or justified], not given natural facts."476
Thus, we should not speak of natural territorial boundaries but the
"territorialization" of identities.477
This territorialization "must be understood
as the complex and contingent results of ongoing historical and political
processes."478
Accordingly, such political processes, rather than pregiven
cultural-territorial entities, must inform our thinking about jurisdiction.479
Indeed, the assumption of a fixed nation-state with spatially-based
identities creates significant problems on the ground. "Although the color
map of the political world displays a neat and ordered pattern of interlocking
units (with only a few lines of discord), it is not surprising that the real world
of national identities is one of blotches, blends, and blurs."480
First, many
people inhabit border areas, where "the fiction of cultures as discrete,
481. Gupta & Ferguson, Beyond "Culture," supra note 445, at 34; Chicana writer
and poet Gloria Anzaldua has captured one experience of a "borderland" existence:
I am a border woman.... I have been straddling that tejas­Mexican border,
and others, all my life. Iťs not a comfortable territory to live in, this
place of contradictions. Hatred, anger, and exploitation are the prominent
features of this landscape. However, there have been compensations for
this mestiza, and certain joys. Living on borders and in margins, keeping
intact one's shifting and multiple identity and integrity, is like trying to
swim in a new element.... There is an exhilaration in being a participant
in the further evolution of mankind....
GLORIA ANZALDUA, BORDERLANDS/LA FRONTERA : THE NEW MESTIZA (Preface, no pg.
number) (1987).
482. See ANSSI PAASI , T ERRITORIES, BOUNDARIES, AND CONSCIOUSNESS: THE
CH A N G I N G GEOGRAPHIES OF THE FINNISH-RUSSIAN BORDER (1996); Oren Yiftachel,
Regionalism Among Palestinian-Arabs in Israel, in NESTED IDENTITIES 237; Jena Gaines, The
Politics of National Identity in Alsace, 21 CANADIAN REV. OF STUDS. IN NATIONALISM 1
(1986). Borderland regions, because they are often so removed physically from the state center,
are often psychologically, as well as physically, isolated, see STEIN RACCOON & DEREK
ERWIN, ECONOMY, TERRITORY, IDENTITY: POLITICS OF WEST EUROPEAN PERIPHERIES
(1983), and therefore provide fertile ground for the introduction of disparate cultural influences.
Not surprisingly, states often put extra effort into securing border communities both culturally
and ideologically. For example, the Dominican Republic forcibly expelled Haitians from border
communities and then attempted to reeducate the remaining population to make the region
more "Dominican." See John Augelli, Nationalization of Dominican Borderlands, 70
GEOGRAPHICAL REV. 19 (1980); see also George W. White, Transylvania: Hungarian,
Romanian, or Neither?, in NESTED IDENTITIES 267 (discussing efforts by the Romanian state
to eradicate Hungarian influences in the borderland of Transylvania).
483. Id.
484. See id.
485. Kaplan, supra note 480, at 38; see also generally MO DERN DIASPORAS IN
INTERNATIONAL POLITICS (Gabriel Sheffer ed., 1986).
105
objectlike phenomena occupying discrete spaces becomes implausible."481
Such people may identify with the state controlling the area, the nation with
which most inhabitants identify, or the borderland itself.482
Second, many
others live a life of border crossings--migrant workers, nomads, and
members of the transnational business and professional elite. For these
people, it may be impossible to find a unified cultural identity. "What is `the
culture' of farm workers who spend half a year in Mexico and half in the
United States?"483
Finally, there are those who cross borders more or less
permanently--immigrants, refugees, exiles, and expatriates.484
In their
case, the disjuncture of place and culture is especially clear. Immigrants
invariably transport their own culture with them to the new location and,
almost as invariably, shed certain aspects of that culture when they come
in contact with their new communities. Diasporas therefore are both
"transnational" in the sense of being dispersed among several countries, but
also extremely national in that they tend to share a cultural and political
loyalty to a homeland.485
Indeed, such clashes of former culture and
present community have led to questions about the so-called "cultural
486. So-called "cultural defenses" use evidence about a defendanťs cultural
background to negate or to mitigate criminal liability (with a concomitant sentence reduction).
For example, in one early use of a cultural defense that was recognized within the United States,
a court in Fresno, California, took into account a husbanďs tribal custom of marriage by capture
(which involves the kidnap and rape of an intended wife) in permitting a guilty plea to
misdemeanor false imprisonment, rather than rape and kidnaping. See Rorie Sherman,
"Cultural" Defenses Draw Fire, NAŤL L.J. , Apr. 17, 1989, at 3. To its supporters, the
"cultural defense is an argument for tolerance of foreign cultures due to a lack of moral basis for
punishment." Andrew M. Kanter, The Yenaldlooshi in Court and the Killing of a Witch: The
Case for an Indian Cultural Defense, 4 S. CAL. INTERDISC. L.J. 411, 413 (1995). But see, e.g.,
Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System
Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141, 144 (FALL 1994)
("Permitting the [cultural] defense promotes an unfair policy towards the majority to whom the
defense violates principles of legality... [O]pponents assert that a recognition of the cultural
defense would, in essence, condone and even encourage, the violence toward women that is
practiced throughout the world."); id. at 155 ("The cultural defense, if formally adopted, would
operate as an excuse for an otherwise criminal act. Under the present justice system, the act
would be considered wrongful; however, the actor would be excused because he lacked the
requisite mental culpability."); see also Neal A. Gordon, The Implications of Memetics for the
Cultural Defense, 50 DUKE L.J. 1809, 1831 (2001) "The cultural defense is...condescending
toward other cultures--it excuses action based on foreign cultures by likening it to insanity....
[T]he defense isolates cultural groups with a patronizing wink. This isolation may lead in turn
to a balkanized law and reinforce the idea that minorities should be treated differently.").
487. Kaplan, supra note 480, at 38.
488. Id.
489. Robin Cohen, Diasporas and the Nation-State: From Victims to Challengers,
72 INŤL AFFAIRS 507, 517 (1996).
490. Gupta, supra note 3, at 179, 196.
491. Gupta & Ferguson, Beyond "Culture," supra note 445, at 35.
492. See Gupta & Ferguson, "Beyond Culture," supra note 445, at 35.
106
defense" to certain crimes.486
And the divided loyalty of diaspora
communities can cause host countries to view members of these
communities as a potential threat.487
By creating communities of interest
rather than place, diasporas (the number of which is increasing due largely
to labor immigration)488
pose an implicit threat to territorially based nation-
states.489
In sum, we see that "[p]rocesses of migration, displacement and
deterritorialization are increasingly sundering the fixed association between
identity, culture, and place."490
In addition, the presumed tie between a territory and a culture fails
to account for the obvious cultural differences that exist within a locality.
"`Multiculturalism' is both a feeble recognition of the fact that cultures have
lost their moorings in definite places and an attempt to subsume this plurality
of cultures within the framework of a national identity."491
Even the idea
that these are "subcultures" within a society tends to preserve the idea of
distinct "cultures" within the same geographical and territorial space. Thus,
many accounts of ethnicity, even when used to describe cultural differences
in settings where people from different regions live side by side, rely on an
unproblematic link between identity and place. While such conceptions aim
to stretch the naturalized association of culture with place, they leave the tie
between culture and place largely intact.492
493. Id. at 38; see also RAYMOND WILLIAMS, TOWARDS 2000, at 177 (1983)
(describing the cosmopolitan existence of a typical English person experiencing everyday life);
T OMLINSON, supra note 406, at 113-16 (updating Williams' story from the early 1980s to the
late 1990s).
494. See GIDDENS, supra note 425, at 141.
495. See TOMLINSON, supra note 406, at 107-08.
496. Id. at 115.
497. See id. at 116.
498. See id. at 119 ("For where are these places except in our cultural imagination,
our repertoire of `textual locations' built up out of all the millions of images in films...we have
encountered? And do we really require any of them to correspond all that closely with our
`reaľ locality?").
107
Even people who remain in seemingly familiar and ancestral places
are likely to find that their relation to place continues to change over time,
and the illusion of a natural and essential connection between the place and
the culture will therefore be challenged consistently. "`Englishness,' for
instance, in contemporary, internationalized England is just as complicated
and nearly as deterritorialized a notion as Palestinian-ness or Armenianness,
for "England" (the real "England") refers less to a bounded place than
to an imagined state of being or a moral location."493
We can see the everyday effects of deterritorialization in all areas
of the world and all sectors of the economy. For example, the "local"
shopping mall is not truly experienced as local at all, because nearly
everyone who shops there is aware both that most of the shops are chain
stores identical to stores elsewhere and that the mall itself closely resembles
innumerable other malls around the globe.494
Thus, we experience a "local"
place, while recognizing the absent forces that structure our experience,
including the steadily declining local ownership of public spaces that is linked
directly to the globalization of capital.495
Similarly, we may feel the growing
significance of "remote" forces on our lives, whether those forces are
multinational corporations, world capital markets, or distant bureaucracies
like the European Union. As John Tomlinson has observed:
People probably come to include distant events and
processes more routinely in their perceptions of what is
significant for their own personal lives. This is one aspect
of what deterritorialization may involve: the everbroadening
horizon of relevance in people's routine
experience, removing not only general "cultural
awareness" but, crucially, the processes of individual "life
planning" from a self-contained context centered on
physical locality or politically defined territory.496
The increased access to media also affects deterritorialization because one
is no longer limited to the perspectives offered from within one's "home
culture."497
Thus, the "typical" life of a suburban family in the United
States may become as familiar to world citizens inundated by American film
and television as their own "home" life.498
And, of course, those with even
499. David Harvey, From Space to Place and Back Again, in MAPPING THE
FUTURES: LOCAL CULTURES, GLOBAL CHANGE 3, 4 (Jon Bird et al. eds., 1993).
500. See id.
501. See id. ("While the collapse of spatial barriers has undermined older material
and territorial definitions of place, the very fact of that collapse...has put renewed emphasis
upon the interrogation of metaphorical and psychological meanings which, in turn, give new
material definitions of place by means of exclusionary territorial behavior.").
502. Id. at 6.
108
less power to influence the processes of globalization--those forced to
cross borders for work, those bankrupted through global competition, those
affected by environmental degradation, and many others--experience this
deterritorialization in even more insidious ways.
Accordingly, we must think more carefully about the social
conception of place. As David Harvey has pointed out, "place" is "one of
the most multi-layered and multi-purpose words in our language."499
Indeed, we have many ways to refer to the generic qualities of place
(milieu, locality, location, locale, neighborhood, region, territory),to particular
kinds of places (city, village, town, state), and to connote place without
designating a particular location (home, hearth, turf, community, nation).
We also talk metaphorically about the "place" of art in social life, the
"place" of women in society, and our "place" in the cosmos, we assert
norms by putting things "in their place," and we seek to subvert norms by
finding a "place" for alternative narratives.500
Thus, many conceptions of
"place" are completely unmoored to specific spatial locations.501
Moreover, Harvey argues, social changes, such as the advance of
industrial capitalism, alter our conceptions of place. For example, the
growth of turnpikes, canals, railways, automobiles, air transport, and
telecommunications alter the character of places, creating "new territorial
divisions of labour and concentrations of people and labour power, new
resource extraction activities, and [new] markets...."502
Because capital is
mobile, however, landscapes shaped in relation to a certain phase of
industrial development must be reshaped around new forms of
transportation, communication, and production. "The cathedral city
becomes a heritage centre; the mining community becomes a ghost town;
the old industrial centre is deindustrialized; speculative boom towns or
gentrified neighborhoods arise on the frontiers of capitalist development or
out of the ashes of deindustrialized communities."
Harvey argues that it is a mistake to assume that either one of these
categorizations of place are more "authentic." They are merely different
social meanings inscribed on physical locations at different times or by
different people. Another example illustrates this process of "placemaking."
Although a new entertainment district was built in New York City
in the late-nineteenth century, it was not called Times Square until the early
1900s. The New York Times, which had just relocated to the square,
pushed for the name in order to compete with the New York Herald, which
503. See Gupta & Ferguson, Beyond "Culture," supra note 445, at 37-38
504. Id. at 39.
505. Jonathan Rée, Cosmopolitanism and the Experience of Nationality, in
COSMOPOLITICS: THINKING AND FEELING BEYOND THE NA T I O N 77, 81 (Pheng Cheah &
Bruce Robbins eds., 1998). Indeed, as Rée points out, the two national groups in Europe with
109
was located in Herald Square, a few blocks away. The Times organized
the New Year's Eve fireworks display and later the ball-dropping as a
promotional gimmick. According to Harvey, people were drawn to the
square not only at New Year's, but throughout the year to sample the
entertainments, eat out, survey the latest fashions, and pick up gossip on
everything from real estate transactions to celebrity activities. "Times
Square was, in short, created as a representation of everything that could
be commercial, gaudy, promotional and speculative in the political economy
of place construction." This was, seemingly, a "pseudo-place" constructed
by capitalism to masquerade as a town square. Yet, as Harvey reports,
Times Square "soon became the symbolic heart of New York City....the
place where everyone congregated to celebrate, mourn or express their
collective anger, joy or fear." Although created as one kind of place, it was
appropriated for another and became "an authentic place of representation
with a distinctive hold on the imagination." Thus, places and their social
content are always in flux, always contested.
Similarly, in the global context the ideas of homeland or place-ness
do not necessarily cohere with a physical location: there is no necessary
correspondence between geography and social meaning. "In a world of
diaspora, transnational culture flows, and mass movements of populations,
old-fashioned attempts to map the globe as a set of culture regions or
homelands are bewildered by a dazzling array of postcolonial simulacra,
doublings and redoublings, as India and Pakistan seem to reappear in
postcolonial simulation in London, prerevolution Teherean rises from the
ashes in Los Angeles, and a thousand similar cultural dramas are played out
in urban and rural settings all across the globe."503
The very idea of a
"nation" or a "culture"--understood as a common ethnic or political society
with a shared sense of identity existing within but not without a fixed set of
borders--is irretrievably compromised.
Ironically, as actual places and localities become ever more blurred
and indeterminate, ideas of culturally and ethnically distinct places become
perhaps even more important.504
Imagined communities attach themselves
to imagined places, displaced peoples cluster around remembered or
idealized homelands in a world that seems increasingly to deny such firm
territorialized anchors in their actuality. Indeed, one of the primary illusions
of nationalism is the presumption that one's nation has existed from time
immemorial. In case after case, however, it turns out that most national
traditions are inventions of the past two hundred years, and the principle of
nationality itself, "despite its trappings of misty antiquity, is a defining feature
of modernity."505
Thus, in the next two sections I first explore the particular
the greatest claims to many centuries of continuous existence ironically have no securely held
collective territory: the Romanies and the Jews. See id. at 89, n.10.
506. See Immanuel Wallerstein, The National and the Universal: Can There Be Such
a Thing as World Culture?, in CULTURE, GLOBALIZATION AND THE WORLD-SYSTEM, supra
note 413, at 91, 92 ("A world consisting of...nation-states came into existence even partially
only in the sixteenth century. Such a world was theorized and became a matter of widespread
consciousness even later, only in the nineteenth century. It became an inescapably universal
phenomenon later still, in fact only after 1945.").
507. Gupta, supra note 3, at 195.
508. Id.
509. Weber defined the state as that agency within society which possesses the
monopoly of legitimate violence. ERNEST GELLNER, NATIONS AND NATIONALISM 3 (1983).
Ernest Gellner, modifying Weber's definition slightly, argues that "the `state' is that institution
or set of institutions specifically concerned with the enforcement of order (whatever else they
may also be concerned with)." Id. at 4. Regardless of which definition one adopts, for our
purposes the salient point is that the state is a political (not a natural) entity.
510. See id. at 7 ("Two men are of the same nation if and only if they share the
same culture, where culture in turn means a system of ideas and signs and associations and ways
of behaving and communicating.... [In addition,] two men are of the same nation if and only if
they recognize each other as belonging to the same nation.").
110
social and historical context surrounding the rise of the nation-state, and
then survey the many ways that nations imagine themselves as natural and
inevitable communities rather than as historically contingent and
ideologically contested ones.
B. The Historical Contingency of the Nation-State
As discussed in the preceding section, we tend to assume a
correspondence between territory, governance, and people. Yet, by looking
at the historical rise of the nation-state, we can see that these ties are both
relatively recent506
and the result of a particular sequence of events. Thus,
instead of simply asserting the inevitability of nation-state sovereignty, we
must attempt "to understand why certain forms of organizing
space--specific boundaries, particular places--attain the singular
significance they do in a given historical context."507
This section briefly
surveys this context. Only by "stepping `outside' the nation (and the
problematic of nationalism) [can we] see how nations are created and
reproduced as a consequence of the global interstate system."508
The words "nation" and "state" are frequently used as synonyms,
despite the significant difference between them. For example, the United
"Nations" actually represents the states of the world, not national groups.
Similarly, international relations really refers to interstate relations.
Whereas a state is an explicitly political entity based on physical dominion
over a place,509
a nation implies a "natural" ethnic or cultural unity.510
Yet,
as the last section suggested, there is no necessary tie between culture and
geographical territory. Accordingly, "neither nations nor states exist at all
511. Id. at 6.
512. See David H. Kaplan & Guntram H. Herb, Introduction: A Question of Identity,
in NESTED IDENTITIES: NATIONALISM, TERRITORY , A N D SCALE 1, 3 (Guntram H. Herb &
David H. Kaplan eds., 1999).
513. Id.
514. This history is also a bit distorted because it focuses on Western European
history. Nevertheless, the European experience is the basis for most scholarship on nationalism
and sovereignty, and, by most accounts, was the foundation for the law of nations as we
conceive it today. See JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL
LAW 9 (1979) ("Despite its claims to universality, the early law of nations had its origins in the
European State-system."); see also JAMES MAYALL, NATIONALISM AND INTERNATIONAL
SOCIETY 1 (1990) ("[T]he global system of world politics is historically derived from the
European states-system as it developed between the seventeenth and twentieth centuries."). For
an account of how the European model of statehood spread to other continents and cultures, see
ROBERT H. JACKSON, QUASI-STATES 59-81 (1990).
515. J. Ruggie, Territoriality and Beyond: Problematising Modernity in International
Relations, 47 INŤL ORGANISATION 139, 149 (1993); see also J.R. STRAYER & D.C. MUNRO,
THE MIDDLE AGES 115 (1959).
516. CURTIN, supra note 5, at 8.
517. Daniel Philpott, Sovereignty: An Introduction and Brief History, 48 J. Inťl Aff.
353, 357, 360 (1995); see also Ronald A. Brand, External Sovereignty and International Law,
18 Fordham Inťl L.J. 1685, 1687 (1995) (discussing medieval concept of Respublica
Christiana).
111
times and in all circumstances."511
Moreover, state and nation need not evolve together. In some
countries, the state emerged long before a nation was imagined to inhabit
that state, and in others a sense of nationhood may precede the emergence
of a state structure.512
As a result, "a state territory may contain several
groups who define themselves as separate from the majority nation, or a
nation may extend far beyond the boundaries of the existing state."513
For
example, the main unifying element of the United States is not an ethnic
identity, but simply the fact of being born within the borders of the state.
Not surprisingly, U.S. citizenship, which is based on birth, is distinctly
different from, say, German or Italian citizenship, which is based on blood
relation (a rough proxy for ethnic similarity).
The history of the nation-state in the west is relatively familiar, and
I will only sketch its broad outline here.514
Pre-modern states were not
based principally on territorial sovereignty. Indeed, medieval Europe was
in some ways an archetype for non-exclusive territorial rule; its "patchwork
of overlapping and incomplete rights of government" were "inextricably
superimposed and tangled."515
In spite of this fragmentation, however,
"[m]edieval actors viewed themselves as the local embodiments of a
universal community,"516
a Respublica Christiana "in which each individual
found his definition, identity and purpose, where all lived in common under
the same law and morals and where none was severed or independent in his
authority or beliefs."517
Moreover, political power arose not from the
sacrosanct notion of borders, but from personal allegiances between
518. Guntram H. Herb, National Identity and Territory, in NESTED IDENTITIES,
supra note 512, at 9, 10.
519. See J. Samuel Barkin & Bruce Cronin, The State and the Nation: Changing
Norms and the Rules of Sovereignty in International Relations, 48 INŤL ORG. 107, 111
(1994).
520. ANTHONY GI DDENS, SOCIAL THEORY AND MODERN SOCIOLOGY 170-71
(1987).
521. See W. ULLMANN, PRINCIPLES OF GOVERNMENT AND POLITICS IN THE
MIDDLE AG E S 137 (1975) (arguing that the idea of an omnipotent state was remote from the
medieval mind). Indeed, the word "state" did not exist in political parlance until the 1500s. See
Curtin, supra note 5, at 9, n.27. But see H. MITTEIS, T HE STATE IN THE MIDDLE AGES: A
COMPARATIVE CONSTI T U T I O N A L HISTORY OF FEUDAL EUROPE (1975) (arguing that the
reality of the state pre-existed by several centuries the conscious formulation of the idea of the
state).
522. CURTIN, supra note 5, at 9.
523. See, e.g., id., at 171 (describing close connection between "the ascendency to
power of the bourgeoisie" and "the gradual transformation of the absolutist state into the
nation-state"); Herb, supra note 518, at 10; Alexander B. Murphy, International Law and the
Sovereign State: Challenges to the Status Quo, in REORDERING THE WORLD, supra note 7.
524. Jouni Häkli, Territoriality and the Rise of the Modern State, 172 FENNIA 1, 4345
(1994).
525. JEAN GOTTMAN, THE SIGNIFICANCE OF TERRITORY (1973).
526. See Herb, supra note 518, at 11.
527. See ROBERT D. SACK, HUMAN TERRITORIALITY: ITS T HEORY AND
HISTORY 131-32 (1986).
112
subjects and a wide variety of authorities,518
including the Pope, the Holy
Roman Emperor, and various nobles, kings, and clerics.519
Anthony
Giddens describes this as the "absolutist state," in which a political order is
"dominated by a sovereign ruler, monarch or prince, in whose person are
vested ultimate political authority and sanctions, including control of the
means of violence."520
Yet, this was a different conception from that of
sovereign states fixed in place.521
In this world, the social construction of
space was "organized concentrically around many centres depending upon
current political affiliation, rather than a singular centre with established
territorial boundaries."522
Commentators trace the origin of modern western territorial states
to the emergence of European mercantile capitalism in the fourteenth and
fifteenth centuries.523
Increasing wealth in Europe resulted in larger and
more complex economies, which in turn required greater central control and
administration.524
In addition, the declining influence of the church, and the
development of more sophisticated military technology allowed rulers to
begin to assert more exclusive control over geographical territory.525
Overseas discoveries also spurred on the development of territorially-based
sovereignty because demarcating territory allowed for exclusive and
unambiguous claims to possessions in the new world.526
For example, Spain
and Portugal divided their colonial spheres using a line of longitude in the
Treaty of Tordesillas in 1494.527
Scholars such as Francisco de Vitoria in
Spain, and Hugo Grotius in Holland emerged in the sixteenth century to
articulate a theory of territorial sovereignty. They argued that any political
528. See Murphy, supra note 523, at 210.
529. See Mark L. Movsesian, The Persistent Nation State and the Foreign Sovereign
Immunities Act, 18 CARDOZO L. REV. 1083, 1084 (1996) ("By most accounts, the idea of the
sovereign state, an entity exercising `supreme legitimate authority within a [[defined] territory,'
grew out of the Protestant Reformation.") (quoting Philpott, supra note 517, at 357); see also
JACKSON, supra note 514, at 50 ("Sovereign states first came into view when medieval
Christendom fractured under the combined impact of the Renaissance and the Reformation.").
530. Treaties, supra note 20. Westphalia has been called the "majestic portal"
leading from the medieval world to modernity. See Gross, supra note 20, at 28. Others,
however, have observed that Westphalia did not simply create a system of sovereign states ex
nihilo, but rather that it consolidated 300 years of evolution towards such a system. See, e.g.,
Philpott, supra note 517. For an argument that Westphalia did not even constitute a decisive
break with the medieval order, see generally S. Krasner, Westphalia and All That, in IDEAS AND
FOREIGN POLICY : BELIEFS, INSTITUTIONS AND POLITICAL CHANGE 235 (J. Goldstein & R.
Keohane eds., 1993). For further discussion of Westphalia, see generally HANS KOHN, THE
IDEA OF NATIONALISM 188 (1944); Alfred-Maurice de Zayas, Peace of Westphalia (1648), in
7 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 536-39 (1984). On the Thirty Years
War, see generally C.V. W E D G W O O D , T HE T HIRTY YEARS W A R (1938); GEOFFREY
PARKER, EUROPE IN CRISIS, 1598-1648 (1979).
531. See THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NA T I O N S
113 (1990) ("The notion of the sovereign equality of states may be said to have made its debut,
in modern Western civilization, with the Peace of Westphalia."); Brand, supra note 517, at
1688 (explaining that Peace of Westphalia formalized "[a] new era of equal sovereigns"); Eric
Lane, Demanding Human Rights: A Change in the World Legal Order, 6 HOFSTRA L. REV.
269, 270 (1978) (noting " Westphalian emphasis on territorial sovereignty and sovereign
equality").
532. See CURTIN, supra note 5, at 11 ("This post-medieval epoch was characterised
by the coexistence of a multiplicity of states each sovereign within its territory, equal to one
another and free from any external earthly authority.").
533. Movsesian, supra note 529, at 1085.
534. Although this principle of cuius regio, euis religio (whose the region, his the
religion) had been recognized in the Peace of Augsburg a hundred years earlier, it was not put
into practice until Westphalia. See Philpott, supra note 517, at 363.
535. Id. at 364.
536. See CURTIN, supra note 5, at 11.
113
authority exercising control over territory was entitled to govern that
territory free from outside intervention.528
Ultimately, the Protestant Reformation weakened the central
authority of the Pope,529
bringing on the Thirty Years' War, which
culminated in the Treaty of Westphalia, signed in 1648.530
Under the treaty,
each country agreed to honor each others' territorial boundaries and to
refrain from interfering in internal affairs of another state, thereby codifying
the territorial power of individual sovereign states531
and limiting the
prerogatives of the Pope and Emperor.532
The treaty gave states both the
authority to form alliances without imperial or papal approval533
and the
power to determine the religion that would be practiced within their
territories.534
Moreover, "as it came to be practiced," Westphalia "removed
all legitimate restrictions on a state's activities within its territory."535
Thus,
the sovereign state became the primary political unit, and the control of
territory became the primary criterion for assessing the existence of such
a state.536
Subsequently, public international law has developed to
537. See id. ("The new multistate system rested on international law and the balance
of power, a law operating between rather than above states and a power operating between
rather than above states.").
538. See MALCOLM ANDERSON, FRONTIERS: T ERRITORY AND STATE
FORMATION IN THE MODERN WORLD 19, 37-38 (1996).
539. See CURTIN, supra note 5, at 13-14 ("Sovereignty shifted from the person of
the monarch, identified with a `divine cosmos' to the territory of the state and state institutions
(a more impersonal structure of power with supreme jurisdiction over a territory) and the
loyalty of citizens became something that had to be won by modern states (legitimacy).").
540. See Herb, supra note 518, at 11; Murphy, supra note 523, at 210; CURTIN,
supra note 5, at 15 ("The governing people became a transformed political subject, namely a
people of citizens which came to be identified with the Nation."). HORSMAN & MARSHALL,
supra note 7, at 5-6 (1994) ("The French Revolution of 1789 marked a watershed: in its
aftermath, the nation was not just the king, his territory, and his subjects.... [T]he patrie...was
not strictly the country but its people--all its people. The nation was a pact between the
sovereign people and the state...."). But see ANTHONY D. SMITH, NATIONALISM AND
MODERNISM: A CRITICAL SURVEY OF RECENT THEORIES OF NATIONS AND NATIONALISM
38 (1998) (arguing that the growth of nationalism can be traced back as far back as the
fourteenth and fifteenth centuries in many European regions).
541. Murphy, supra note 523, at 210.
542. See Herb, supra note 518, at 11; see also John Borneman, State, Territory, and
National Identity Formation in the Two Berlins, 1945-1995, in CULTURE, POWER, PLACE,
supra note 3, at 93, 97 ("Contemporary state narratives about a national identity are
constructed in a long conversation between states and their residents.... In its laws and policy
statements, the state proposes for its citizens a model life course using tools including
educational institutions, housing regulations, fiscal and monetary policy, and marital laws. The
citizen reflects on and responds to this model life course in everyday experiences and ritual
encounters."). But see SMITH, supra note 540, at 40 (cautioning against using a neo-Marxist
114
harmonize and prevent conflicts among these new actors in human
history.537
Although Westphalia established a system of state territorial
sovereignty, it was not until the Enlightenment that a separate conception of
nation emerged. Whereas the right to control territory had previously been
viewed as the right of a monarch, the contractarian philosophy of Locke,
Montesquieu, and Rousseau grounded political power in the consent of the
people of a given territory.538
Thus, in order to be legitimate, modern states
needed the loyalty of this territorially-bounded group of people.539
Such
groups came to be conceived as culturally cohesive communities with
common interests and bonds known as nations, and the political institutions
they formed were called nation-states.540
"The Enlightenment ushered in
an era in Europe during which sovereign nation-states were assumed to be
the political geographic ideal.... The notion of territorial sovereignty thus
acquired a new kind of legitimacy, one premised on the ideological bedrock
of `nationaľ rights."541
As discussed in more detail in the next section, these new states, in
turn, used their administrative power to encourage social cohesion and
identification with the state, through the enforcement of uniform languages,
the establishment of compulsory education, and the institution of rhetorical
and symbolic efforts to erase local differences and imagine a coherent
community.542
These efforts formed the roots of nationalism, which can be
"top-down" framework whereby elites simply transmit nationalist sentiment to the "masses");
see also note 625, infra.
543. See JOHN BREUILLY, NATIONALISM AND THE STATE 2 (2d ed. 1994) ("The
term `nationalism' is used to refer to political movements seeking or exercising state power and
justifying such action with nationalist arguments."); GELLNER, supra note 509, at 1
("Nationalism is primarily a political principle, which holds that the political and the national
unit should be congruent."); WILLIAM PFAFF, THE WRATH OF NATIONS 197 (1993)
("Nationalism is the political ... expression of a form of group identity attached to an existing
state, or to a community which is not yet a recognized nation-state but which believes that it
should become one."). For other discussions of nationalism, see generally KOHN, supra note
530; MICHAEL BI L L I G, BANAL NATIONALISM (1995); BENEDICT ANDERSON , IMAGINED
COMMUNITIES (rev. ed. 1991); GIDON GOTTLIEB, NA T I O N AGAINST STATE (1993); Liah
Greenfeld, Nationalism (1992); ERIC J. HOBSBAWM, NATIONS AND NATIONALISM SI NCE
1780 (1990); MICHAEL IGNATIEFF, BLOOD AND BELONGING (1993); ANTHONY D. SMITH ,
THE ETHNIC ORIGINS OF NATIONS (1986); YAEL TAMIR, LIBERAL NATIONALISM (1993);
Lea Brilmayer, The Moral Significance of Nationalism, 71 NOTRE DAME L. REV. 7 (1995);
Thomas M. Franck, Clan and Superclan: Loyalty, Identity and Community in Law and
Practice, 90 AM. J. INŤL L. 359 (1996). For an essay summarizing some of the recent
scholarship, see Tony Judt, The New Old Nationalism, N.Y. REV. BOOKS, May 26, 1994, at 44.
544. Movsesian, supra note 529, at 1086; see also HAROLD J. LASKI, THE
FOUNDATIONS OF SOVEREIGNTY AND OTHER ESSAYS 15 (1921); KOHN, supra note 530, at
4 (asserting that nationalism "changed" the state "by animating it with a new feeling of life and
with a new religious fervor").
545. See Alan Branthwaite, The Psychological Basis of Independent Statehood, in
STATES IN A CHANGING WORLD 46, 51 (Robert H. Jackson & Alan James eds., 1993).
546. See infra, text accompanying notes 626-639.
547. Indeed, some argue that state sovereignty continues to be a social construction:
See generally, e.g., STATE SOVEREIGNTY AS SOCIAL CONSTRUCT (Thomas J. Biersteker &
Cynthia Weber eds., 1996).
548. CURTIN, supra note 5, at 15; see also HORSMAN & MARSHALL, supra note
7, at 10 (noting the contemporary view that the nation-state is "natural and eternal").
549. See id. ("[T]he identification of citizenship with residence in a particular
territorial space became the central fact of political identity.").
115
defined as a political movement seeking to unite people to a sovereign state,
based on common ancestry or culture.543
Nationalism "reordered the
psychological allegiances of Europe and gave to the state an emotional
appeal it had previously lacked."544
By fostering a sense of "belonging,"545
of shared participation in a unique, sometimes mythical, heritage,546
eighteenth- and nineteenth-century nationalism provided the basis for
powerful new political identities to replace the medieval unity of the
Respublica Christiana.547
Indeed, as one commentator has argued, the idea
that nationality equals identity became "a social fact or social construction
that is taken for granted, a cognitive frame in which to threaten nationality
is to threaten identity."548
Thus, political identity came to be linked
powerfully with territory.549
Nevertheless, although the American and French Revolutions
provided a context for conceiving of a territorially-based "people" as a
unified "nation," problems arose in applying similar conceptions elsewhere.
The nation-state system did not follow the ethnic identity of its human
subjects as its controlling criteria. Therefore, the map of the postWestphalian
Europe showed a mosaic of sovereign powers controlling
550. For an argument that a right to personal self-determination similar to the right
of nation-states, see Francis A. Gabor, Quo Vadis Domine: Reflections on Individual and Ethnic
Self-Determination Under an Emerging International Legal Regime, 33 INŤL LAW. 809, 81114
(1999).
551. G. Hillery, Definitions of Community: Areas of Agreement, 20 RURAL
SOCIOLOGY 116, ___ (1955).
116
multiethnic societies. This arrangement has continued to create tension and
conflict. In Central and Eastern Europe, for example, two different
identities formed: one based on ethnic affiliation, and one based on territorial
boundaries. Unfortunately, though these two identities are quite distinct,
they were conflated in the territorial settlements that followed World War
I, which attempted to create new nation-states, such as Czechoslovakia and
Yugoslavia. In addition, the UN was established to ensure the territorial
integrity of the existing system of states and therefore until very recently
tended to recognize only those self-determination movements brought forth
by a people as a whole operating within existing colonial boundaries (such
as Nigeria), rather than ethnic minorities operating within those states.550
Even this cursory survey reveals first that the idea of nation-states
operating within fixed territorial boundaries is a relatively recent
phenomenon, and second, that the link between nation and state is
contingent and often tenuous. Thus, although it is admittedly difficult to
imagine an international geopolitical order that is not based on a network of
nation-states operating in bounded spaces, history suggests that the nationstate
system is neither immutable nor inevitable. Moreover, to the extent
that nations and states do not coincide, alternative conceptions of identity
and community that are not based on state boundaries will continue to
challenge the hegemony of this system.
C. The Nation-State as an Imagined Community
If legal jurisdiction is both a symbolic assertion of community
dominion and a way of demarcating the boundaries of community, then it is
essential that we consider more carefully what it means to say that a
coherent community exists and how such a community might be defined.
This consideration reveals the act of imagination necessary to equate
community with state as well as the ongoing tug-of-war between nostalgic
and transformative visions of community in mediating the relationship
between Self and World.
The concept of "community" is one of the most widely used in the
social sciences. However, a precise definition has been predictably elusive.
Even as far back as 1955, one study compiled 94 social-scientific attempts
at definition and found that the only substantive overlap among them was
that all the definitions dealt with human beings!551
552. See FERDINAND TOENNIES, GEMEINSCHAFT UND GESELLSCHAFT 43-44
(Charles Loomis trans., 1887; 1957).
553. See id. at ___.
554. See id. at ___.
555. See id. at ___.
556. See HENRY SUMNER MAINE, ANCIENT LAW 165 (Univ. of Ariz. Press 1986)
(1864) ("[T ]he movement of the progressive societies has hitherto been a movement from
Status to Contract.").
557. See id.
558. See EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 88-92 (W.D.
Halls trans., 1984).
559. See id. at 129-32.
117
To many, the word "community" conjures up Norman Rockwelllike
images of a small, face-to-face congregation of people sharing common
values, backgrounds, and worldviews. Such a vision seems at odds with
much broader appropriations of the word, such as "the American
community" or "the world community." Thus, it is not surprising that in
much sociological and anthropological literature, community and state are
often juxtaposed. For example, Ferdinand Tönnies, writing in the 1880s,
described ways in which "gemeinschaft"--the community of intimacy,
close personal knowledge, and stability--was being superceded by
"gesselschaft", the political society dominated by social relations that were
artificial, contractual, ego-focused, short-term, and impersonal.552
Tönnies
viewed the small, rural community of the past as a site of solidarity and
unity, while portraying contemporary society as incapable of creating such
bonds.553
His conception of gemeinschaft was firmly grounded in physical
proximity, where community derives from shared territory, blood ties, and
constant interaction among its members, rather than shared values or
interests.554
In contrast, according to Tönnies, the modern period of
gesellschaft offered no face-to-face community, but only a set of
associations invented for the rational achievement of mutual goals (for
example, corporations, political parties, and trade unions).555
Other social scientists of the late nineteenth and early twentieth
century echoed this same juxtaposition. Henry Maine's work, though not
specifically focused on the nature of community, also contrasted a society
founded on personal relationships and blood-based hierarchies with a more
"modern" social form based on individual freedom to enter into legal
agreements.556
Maine saw this transformation from "status" to "contract"
as a shift from defining social relations through kinship networks to defining
them based on individual will.557
Similarly, Emile Durkheim argued that
"earlier" communities were characterized by "mechanical solidarity", in
which society was founded upon likeness and unable to tolerate
dissimilarity.558
In contrast, "modern" society was based on "organic
solidarity", the integration of difference into a collaborative, harmonious
whole.559
This vision, however, remained a dream for the future.
Durkheim viewed the contemporary world as without "a whole system of
560. Id. at lv.
561. See EMILE DURKHEIM, SUICIDE: A STUDY IN SOCIOLOGY 361-92 (John A.
Spaulding & George Simpson trans., 1951).
562. RAYMOND WILLIAMS, THE COUNTRY AND THE CITY 165 (1973).
563. See ROBERT REDFIELD, THE LITTLE COMMUNITY AND PEASANT SOCIETY
AND CULTURE 4 (1960).
564. Id. at 5.
565. See RONALD FRANKENBERG, COMMUNITIES IN BRITAIN 238 (1966).
566. See id. at 237-54; see also NIGEL RAPPORT & JOANNA OVERING, SOCIAL
AND CULTURAL ANTHROPOLOGY: THE KEY CONCEPTS (2000) 61 (discussing the work of
Frankenberg and other theorists).
567. See DAVID MINAR & SCOTT GREER, THE CONCEPT OF COMMUNITY 47
(1969).
568. See id.
118
organs necessary to social life (la vie commune)."560
In later work,
Durkheim retreated from his optimistic view of modern society, calling
instead for new communal relationships to counteract the tendency towards
debilitating anomie.561
For many twentieth-century scholars, community remained a term
reserved only for pre-industrial forms of affiliation. For example, Raymond
Williams considered the rise of modernity and its challenge to earlier
conceptions of community: "The growth of towns and especially of cities
and a metropolis; the increasing division and complexity of labour; the
altered and critical relations between and within social classes: in changes
like these any assumption of a knowable community--a whole community
wholly knowable--became harder and harder to sustain."562
Similarly,
Robert Redfield attempted to define community as necessarily small in
scale, homogenous in both activities and states of mind, self-sufficient, and
conscious of its distinctiveness.563
Redfield almost seemed to find a kind of
nobility and purity in these small (generally agrarian) communities. In
contrast, he viewed urban societies far more negatively. To Redfield, cities
are based in "impersonal institutions and what has been called atomization
of the external world."564
Other anthropologists, while perhaps not quite as nostalgic as
Redfield, have similarly viewed communities as inherently local. Ronald
Frankenberg suggested that members of a community must have common
interests in achievable things (economic, religious, or whatever).565
Such
communities, in his view, require people to live face-to-face, in a small
group of people, sharing many-stranded relations with one another and
maintaining a sentimental attachment towards a physical locality and the
group itself.566
David Minar & Scott Greer also emphasized geographical
proximity.567
They argued that the realities of living in a locale will give rise
to common problems, which lead to the development of organizations for
joint action and activities, which in turn produces common attachments,
feelings of interdependence, common commitment, and increasing
homogeneity.568
Even recent work by "communitarian" theorists such as
Amitai Etzioni demonstrates a similar view of community. Attempting to
569. See, e.g., AMITAI ETZIONI, THE SPIRIT OF COMMUNITY (1993).
570. ANDERSON, supra note 543, at 6 (rev. ed. 1991). Ernest Gellner has made a
similar argument. See, e.g., ERNEST GELLNER, T H O U G H T A N D CHANGE 169 (date)
("Nationalism is not the awakening of nations to self-consciousness: it invents nations where
they do not exist.") (emphasis added).
571. Some commentators have taken a more negative spin on the way in which
nationalist movements fabricate many of the "traditions" they purport to restore. See, e.g.,
FRANCIS FUKUYAMA, T HE END OF HISTORY AND THE LAST MAN 269 (1992) (noting the
"deliberate fabrications of nationalists, who had a degree of freedom in defining who or what
constituted a ... nation"); Anthony D. Smith, Introduction: Ethnicity and Nationalism, in
ETHNICITY AND NATIONALISM 1, 3 (Anthony D. Smith ed., 1992) (discussing "modernist"
theories of nationalism).
572. ANDERSON, supra note 543, at 6.
573. See RAPPORT & OVERING, supra note 566, at 62.
574. See GREGORY BATESON, COMMUNICATION 153 (1951).
575. See F. BARTH, ETHNIC GROUPS AND BOUNDARIES (1969).
119
stem what he sees as the multicultural drift away from the common values
of a liberal democracy, Etzioni clings to the notion of shared beliefs in
communities of the past and asks contemporary members of society to
recommit to those values.569
These ideas of community do not fit comfortably with the sprawling
nature of the modern industrialized state. And yet, the transformation of
states into nation-states requires that members of a sovereign entity come
to think of themselves not simply as subjects of a governmental power but
as somehow bound to the other subjects within one community. Benedict
Anderson therefore refers to nation-states as imagined communities,
"imagined because the members of even the smallest nation will never
know most of their fellow-members, meet them, or even hear of them, yet
in the minds of each lives the image of their communion."570
This formulation does not imply that such imagined communities are
somehow "false" or "fabricated" in a negative sense.571
Anderson makes
clear that all communities larger than "primordial villages" (and perhaps
even those) are imagined.572
Thus, nation-states are not illegitimate just
because they imagine and construct psychological bonds of affiliation.
Nevertheless, it means that those bonds are not natural and inevitable; they
are merely one particular way of imagining community among many.
This is a very different vision of community. Rather than a reified,
natural structure in the relations among people, Anderson, and other
theorists, focus on the ways conceptions of "community" are constructed
within social life, on how membership in a community is marked and
attributed, and on how notions of community are given meaning.573
In a
similar vein, Gregory Bateson argued that "community" is not a thing in
itself, but rather an epiphenomenon of social relations.574
Likewise, Barth
observed that social groups are not naturally joined as communities; they
achieve an identity by defining themselves as different from such groups
and by erecting boundaries between them.575
Anthony Cohen extended
Barth's critique, arguing that community must be seen as a symbolic
576. See ANTHONY P. COHEN, THE SYMBOLIC CONSTRUCTION OF COMMUNITY
___ (1985).
577. Id. at 98.
578. See J.R. EISER, SOCIAL PSYCHOLOGY 316 (1986) (describing Social Identity
Theory as "one of the most ambitious undertakings in research on group processes"). For early
work on the theory, see generally Henri Tajfel, Social Identity and Intergroup Behavior, 13
SOC. SCI. INFORMATION 65 (1974); HENRI T AJFEL, HUMAN GROUPS AND SOCIAL
CATEGORIES (1981); SOCIAL IDENTITY AND INTERGROUP RELATIONS (Henri Tajfel ed.,
1982); M. Brewer, Ingroup Bias in the Minimal Intergroup Situation: a Cognitive-Motivational
Analysis, 86 PSYCHOLOGICAL BULLETIN 307 (1979); R. BROWN, GROUP PROCESSES
(1988).
579. See HENRI TAJFEL, HUMAN GROUPS AND SOCIAL CATEGORIES 229 (1981).
580. M.A. HOGG & D. ABRAMS, SOCIAL IDENTIFICATIONS 172 (1988).
581. Gupta & Ferguson, Ethnography, supra note 468, at 1, 13.
582. Id.
120
construct, not a natural one.576
As such, community derives (in Cohen's
vision) not from the type of external characteristics Redfield and others had
posited, but from internal perceptions of a boundary that separates one
social group from another. Thus, communities and their boundaries exist not
as geography but as "repositories of meaning" in the minds of their
members, and these socially constructed repositories of meaning come to
be expressed as a community's distinctive social discourse.577
This sort of symbolic understanding of community is echoed in
social psychological research on group identities. Henri Tajfel, who first
articulated what has come to be known as the Social Identity Theory,578
argued that groups do not exist because of external factors; rather, they
exist only if members identify themselves with the group.579
Subsequent
scholars have articulated three stages in the process of group identification.
First, individuals categorize themselves as part of an ingroup, assigning
themselves a social identity and distinguishing themselves from the relevant
outgroup. Second, they learn the norms associated with such an identity.
Third, they assign these norms to themselves, and "thus their behavior
becomes more normative as their category membership becomes
salient."580
Again, community-formation is viewed as a psychological
process, not as a naturally occurring phenomenon based on external
realities.
Thus, "community" is never simply a matter of recognizing some
kind of pre-existing cultural similarity or social contiguity. Rather,
"community" is "a categorical identity that is premised on various forms of
exclusions and constructions of otherness."581
Indeed, it is only through
such processes of exclusion or otherness that group identities can be
formed. Even in a geographically "local" setting, what is important is "not
simply that one is located in a certain place but that the particular place is
set apart from and opposed to other places."582
Accordingly, even locality
is a social constructed conception.
Significantly, without this kind of expanded vision of community
there is no way to conceptualize the nation-state as a community. Yet, at
583. ANDERSON, supra note 543, at 7.
584. See id.
585. Id.
586. See id. at 12 ("Needless to say, I am not claiming that the appearance of
nationalism towards the end of the eighteenth century was `produceď by the erosion of religious
certainties, or that this erosion does not itself require a complex explanation.").
587. Id. at 11.
588. Id. at 19.
121
the same time, if communities are based not on fixed attributes like
geographical proximity, shared history, or face-to-face interaction, but
instead on symbolic identification and social psychology, then there is no
intrinsic reason to privilege national communities over other possible
community identifications that people might share. These other
identifications will be explored in the next section, but for now it is important
to recognize that the very same conception of community upon which the
nation-state relies also provides the basis for critiquing the hegemony of the
nation-state as the only relevant community under discussion.
According to Anderson, the nation-state historically has had three
distinct imagined features. First, the nation is imagined as limited, with finite
boundaries. He argues that "[n]o nation imagines itself coterminous with
mankind. The most messianic nationalists do not dream of a day when all
members of the human race will join their nation...."583
Second, the nation
is imagined as sovereign in order to replace the divinely-ordained dynasties
that began to give way to modern states in the period of the Enlightenment
and afterwards.584
Third, the nation is imagined as a community.
"Regardless of the actual inequality and exploitation that may prevail in
each, the nation is always conceived as a deep, horizontal comradeship.
Ultimately, it is this fraternity that makes it possible, over the past two
centuries, for so many millions of people, not so much to kill, as willingly to
die for such limited imaginings."585
Unlike Tönnies, Anderson views the modern state not in opposition
to community, but as a replacement for, and appropriation of the idea of
community. According to Anderson, it is no coincidence that the eighteenth
century, with its rationalist secularism and its challenge to divine rule, is also
the century when nationalism arises. While stopping just short of drawing
a causal link between the decline of religious belief and the rise of
nationalism,586
Anderson does argue that the "disintegration of paradise"
required "a secular transformation of fatality into continuity, contingency
into meaning.... Few things were (are) better suited to this end than an idea
of nation."587
Significantly for the study of jurisdiction, Anderson also links this
transformation to changing conceptions of borders. Monarchy, he argues
"organizes everything around a high centre. Its legitimacy derives from
divinity, not from populations, who, after all, are subjects, not citizens."588
Thus, since states were defined by their centers, "borders were porous and
589. Id.
590. See id.
591. Id.
592. GIDDENS, supra note 520, at 171-72. Indeed, according to Giddens, although
all states seem to have been associated with territoriality, "[w]hat is specifically late European
is the fixing of very precise boundaries that actually do effectively mark the realm of the
administration of the state." Id. at 172.
593. See supra text accompanying notes 448-466.
594. See ROBERTS, supra note 467, at 128.
595. See BILLIG, supra note 543, at 20.
596. See ROBERTS, supra note 467, at ___.
597. See BILLIG, supra note 543, at 20.
598. Michael Mann, European Development: Approaching a Historical Explanation,
in EUROPE AND THE RISE OF CAPITALISM (Jean Baechler et al. eds., 1988).
599. See BILLIG, supra note 543, at 20.
122
indistinct, and sovereignties faded imperceptibly into one another."589
According to Anderson, this loose sense of territoriality helps to explain how
pre-modern empires and kingdoms were able to sustain their rule over
widely diverse (and sometimes not even contiguous) populations for long
periods of time.590
In contrast, modern state sovereignty aims to be "fully,
flatly, and evenly operative over every square centimetre of a legally
demarcated territory."591
Similarly, Giddens argues that, whereas the
boundaries of empires and absolutist states were diffuse, the nation-state "is
a set of institutional forms of governance maintaining an administrative
monopoly over a territory with demarcated boundaries...."592
Returning to the idea explored earlier that cartography both reflects
and creates political consciousness,593
we can see the difference Anderson
and Giddens describe played out in a comparison of medieval and modern
maps. European medieval maps differ in a number of ways from
contemporary maps. The older maps tend to depict Jerusalem at the
center,594
they typically indicate an incompleteness to the world, with distant
lands only sketched in and then fading off without clear endpoints, and they
not only are imprecise as to boundaries; they seem to treat boundaries as
relatively insignificant.595
Kingdoms and empires are depicted in general
areas, and little effort is made to pinpoint the precise point where one begins
and the other ends.596
In contrast, the modern map, like the modern
conception of sovereignty, is firmly territorial, with precisely drawn
boundaries.597
Moreover, the evidence seems to indicate that the lack of clear
territorial boundaries was not only part of medieval map-making but
medieval consciousness as well. As one commentator points out, medieval
Europe consisted of a series of small overlapping power structures with no
single authority controlling a clear-cut territory or the people within it.598
In
addition, medieval monarchs tended to divide their estates among their heirs,
meaning that territories would often change shape with each new
generation.599
The feudal structure rested on loyalties to local lords, not to
600. See id.
601. See id.
602. See id.
603. See, e.g., FERNAND BRAUDEL, THE IDENTITY OF FRANCE: VOL. 1. HISTORY
AND ENVIRONMENT (1988); HUGH SETON-WATSON, NATIONS AND STATES (1977).
604. See JOSHUA A. FISHMAN, LANGUAGE AND NATIONALISM 6 (1972).
605. See PAUL R. BRASS, ETHNICITY AND NATIONALISM 39 (1991).
606. See CHRISTINE M. HELMS, THE COHESION OF SAUDI ARABIA (1981).
607. Id.
608. See BILLIG, supra note 543, at 5 ("In both popular and academic writing,
nationalism is associated with those who struggle to create new states or with extreme right-wing
politics. According to customary usage [the American president] is not a nationalist; but
separatists in Quebec and Brittany are; so are the extreme right-wing parties such as the Front
National in France.").
609. Id. at 6.
123
distant monarchs.600
If kings raised armies, they did so through the local
lords.601
And wars were the principal means of conducting politics; they
were constant, seldom announced officially, and were rarely brought to
formal conclusion.602
Not surprisingly, the mass of inhabitants in what is
now France or England did not think of themselves as Englishor French and
had little conception of a territorial nation to which they owed allegiance.603
The social psychological and sociological literature is filled with
similar examples of non-national conceptions of identity. In one study, a
group of peasants in Western Galicia at the turn of the twentieth century
were asked whether they were Poles. "We are quiet folk," they replied.
When asked whether, instead, they were Germans, they responded, "We
are decent folk." Joshua Fishman, in describing this story, concludes that
the identity of these people was bound up in this village or this valley, rather
than an abstract idea like a nation.604
Others have noted that rural Slovaks,
in emigrating to the U.S. at about the same time, were often unable to
articulate a national identity, reporting only the village from which they had
come.605
Similarly, in Central Arabia, nationalism was not a central
category for self-description until the twentieth century.606
Previously,
identities had been based on tribal identification or "sphere of trade."607
Anderson's conception of nation-state as imagined community
allows us to see that, although we often reserve the term "nationalist" for
extremist groups seeking recognition from a modern state,608
the state itself
often operates as a nationalist enterprise, encouraging identification in a
community that matches the state's geographical borders. This nation-state
nationalism is often overlooked because we assume that such nationalism
is "natural." Thus, "the separatists, the fascists and the guerrillas are the
problem of nationalism. The ideological habits, by which `our' nations are
reproduced as nations, are unnamed and, thereby, unnoticed."609
The rise of the nation-state, therefore, is a theory of community, not
a natural or historically grounded set of cultural realities. Moreover, "[t]he
assertion of belonging to a "people", if made in a political context in which
`peoples' are assumed to deserve nation-states, is not an assertion of inner
610. Id. at 63.
611. See id. at 60-61 (observing that feeling patriotic about one's nation requires
pre-existing social representations of what a nation is and what patriotism means). Ernest
Gellner and Anthony Giddens likewise emphasize that nation-states are not founded on
"objective" criteria. Rather, identification with a national community is a phenomenon of
social psychology. Indeed, on the very first page of Nations and Nationalism, Gellner asserts
that "nationalism is primarily a political principle, which holds that the political and the
national unit should be congruent." GELLNER, supra note 509, at 1. According to Gellner,
nationalism cannot exist as a concept without a taken-for-granted belief that the state is the
legitimate political entity. See id. at 4. Accordingly, the national state becomes linked with
a national culture and thereby becomes seen as the "natural political unit." See id. at 409.
Gellner not only links national consciousness to the existence of the state but also highlights the
political reasons it becomes necessary to make the bridge between nation and state appear
natural.
Giddens has focused on the new forms of governance that arose concurrent to the rise
of the nation-state. See ANTHONY GIDDENS, THE NATION-STATE AND VIOLENCE (1985).
He defines the nation-state as "a set of institutional forms of governance maintaining an
administrative monopoly over a territory with demarcated boundaries, its rule being sanctioned
by law and direct control of the means of internal and external violence." Id. at 120. In
Giddens' view, the nation-state is a "bounded power-container": fixed boundaries and ability to
wreak official violence are its key attributes. Id. He argues, moreover, that nation-states
cannot exist in isolation, but only as part of a worldview that sees an entire complex of nationstates
knitted together in a world system. See GIDDENS, supra note 520, at 171. Accordingly,
we have a system of nations who go to war against each other. "In this new world of nations-atwar,
there was little room for a Duke of Burgundy or an Earl of Warwick to march into the fray
at the head of a private retinue." BILLIG, supra note 543, at 21. Rather, local warlords appear
in places where state authority has disappeared. Finally, the geographical boundedness of
nations and the nation-state's monopolization of violence is constantly reflected in rhetoric,
symbolic imagery, and habits of thinking until they appear to be not only the primary means
of organizing political community, but the most natural way of doing so.
612. See, e.g., HOBSBAWM, supra note 543, at 66 (1992) ("China, Korea and
Japan...are indeed among the extremely rare examples of historic states that are composed of
a population that is ethnically almost or entirely homogenous.").
613. See Emiko Ohnuki-Tierney, A Conceptual Model for the Historical Relationship
Between the Self and the Internal and External Others: The Agrarian Japanese, the Ainu, and
the Special-Status People, in MAKING MAJORITIES: CONSTITUTING THE NATION IN JAPAN,
KOREA, CHINA, MALAYSIA, FIJI, TURKEY, AND THE UNITED STATES 31-51 (Dru C. Gladney
124
psychological identity. A movement of national independence will not only
claim that `we are a nation', but in so doing it will be demanding the political
entitlements which are presumed to follow from being a nation."610
Thus,
the feelings of national identification are politically and culturally
constructed.611
The idea that the composition of a nation is a political, not a natural,
process is true not only in the western European nation-states discussed by
Anderson, but even in so-called homogenous states, like Japan. Although
many commentators have assumed that countries such as China, Korea,
and Japan are ethnically homogenous,612
recent scholarship has challenged
this claim. For example, one study argues that Japanese identity and much
of Japanese officialdom has evolved through interaction with both internal
others (minorities) and external others (foreigners), who were just as
important for Japanese self-identification as were internal "cultural"
constructions.613
Similarly, movements in the 1970s and 1980s to define
ed., 1998).
614. See Kosaku Yoshino, Culturalism, Racialism, and Internationalism in the
Discourse on Japanese Identity, in MAKING MAJORITIES, supra note 613, at 13-30.
615. ANDERSON, supra note 543, at 36.
616. See id.
617. Id.
618. Id. at 44.
619. Id.
620. See id. at 16.
621. See id. at 44-45.
622. See id. at 45.
125
distinctive features of Japanese culture and identity were launched in
opposition to western influence because the business and administrative elite
were concerned about too little Japanese homogeneity.614
So, how is national community formed? Anderson traces the
ascendancy of the nation-state to the development of what he calls "print
capitalism."615
He argues that the old orders of religiously unified
communities, divinely determined monarchs, and static cosmologies were
slowly challenged by the impact of economic change, social and scientific
discoveries, and the development of increasingly rapid communications.616
According to Anderson the new order of print capitalism "made it possible
for rapidly growing numbers of people to think about themselves, and to
relate to others, in profoundly new ways."617
Anderson argues that the development of the printing press and the
relative ease with which literary works came to be disseminated laid the
basis for national consciousness in three distinct ways. First, the spread of
print languages meant that there were "unified fields of exchange"
operating "below" Latin, but "above" the huge variety of locally-distinct
spoken vernaculars.618
Thus, "[s]peakers of the huge variety of Frenches,
Englishes, or Spanishes, who might find it difficult or even impossible to
understand one another in conversation, became capable of comprehending
one another via print and paper."619
In the process, Anderson argued, these
readers became aware of a broader community of readers to which they
belonged that was beyond the local, but not as large as the world.
Newspapers enabled the nation to be represented by the juxtaposition of
stories from different "parts" which were then assimilated within one polity.
The newspaper also allowed the nation to differentiate itself from others by
the presentation of "international" and "foreign" news as something
separate from "domestic" or "national" news.620
Second, according to
Anderson, the rise of print-capitalism allowed languages to become more
fixed, therefore further cementing identity based on shared linguistic
tradition.621
Third, and relatedly, Anderson argues that those vernaculars
that were closest to the print languages rose in status and began to form
something beginning to approach an "official" language that would be
understood by a broader group.622
623. See generally BILLIG, supra note 543.
624. Id. at 8; see also Gupta, supra note 3, at 185 ("In addition to practices oriented
externally - that is, toward other states - some of the most important features that enable the
nation to be realized are flags, anthems, constitutions and courts, a system of political
representation, a state bureaucracy, schools, public works, a military and police force,
newspapers, and television and other mass media.").
625. Anthony D. Smith has argued that the social science literature on nationalism
relies too much on a "top down" method whereby elites manipulate "the masses" into feelings
of nationalist identification. See SMITH, supra note 540, at 40. To Smith, this neo-Marxist
outlook "debars us from grasping the popular power of nationalism, its capacity for mass
mobilization, and the vital energizing role played by culture and symbolism." Id. While I
believe this objection to be valid, my argument here (and Billig's as well, I think) is not that the
masses are manipulated by some devious elites to believe in nationalism, but rather that
nationalism is a socially constructed, constitutive, and self-perpetuating phenomenon, and all
members of society are simultaneously agents and recipients of nationalist sentiment. Thus,
Smith's objections to a neo-Marxist view of nationalism seem to have less weight with regard
to Billig's more Foucauldian approach.
626. See, e.g., Eric Hobsbawm, Introduction: Inventing Traditions, in T HE
INVENTION OF TRADITION 1 (Eric Hobsbawm & Terence Ranger eds., 1983); LINDA. COLLEY,
BRITONS: FORGING THE NATI O N , 1707-1837 (1992) (describing the "invention" of a British
national identity in the eighteenth and early nineteenth centuries).
627. See Friedland & Boden, supra note 425, at 10 ("[T]he professional historian
emerged in the nineteenth century at the same time that states were struggling to create a
unified nation in the territories over which they claimed sovereignty.").
126
Other theorists have explored the myriad ways in which national
identification, once introduced, is continually reinforced in the modern era.
For example, Michael Billig has studied what he calls "banal nationalism":
the everyday habits of life that serve subconsciously to remind citizens of
their affiliation with a particular nation-state in a world of nation-states.623
Billig writes:
In so many little ways, the citizenry are daily reminded of
their national place in a world of nations. However, this
reminding is so familiar, so continual, that it is not
consciously registered as reminding. The metonymic
image of banal nationalism is not a flag which is being
consciously waved with fervent passion; it is the flag
hanging unnoticed on the public building.624
Thus, although we usually think of nationalist movements as possibly
suspicious or artificial efforts by sub-groups to claim historical pedigree and
moral and politicalauthority, Billig makes clear that nationalism is continually
reinscribed even in seemingly established nation-states.625
In response to the inherently imagined nature of their existence,
nations make calls upon something called national "identity." And, true to
the social psychological theories, national identity is formed through selfcategorization:
articulating attributes that make "we" of one group different
from "them" in another group. One such attribute is the telling of a unified
national "history." Indeed, it is no coincidence that the rise of nation-states
was accompanied by the creation of national historical tales626
and the rise
of the professional historian.627
These state-funded historians were a
628. See id.
629. EDWARD W. SAID, THE WORLD, THE TEXT, AND THE CRITIC (1983).
630. Gupta, supra note 3, at 191; see also Friedland & Boden, supra note 425, at 10
("[T]erritorial historicity is the core of the nation-states legitimacy and an element in the
narrative of modernity.").
631. Id.
632. Billig, supra note 543, at 71; see also generally M. WETHERELL & J. POTTER,
MAPPING THE LANGUAGE OF RACISM (1992). Indeed, pop cultural forms may also tell
nationalist histories. See generally, e.g., Purnima Mankekar, Making Modernities: The
Ramayan and the Creation of Community and Nation, in SCREENING CULTURE, VIEWING
POLITICS: AN ETHNOGRAPHY OF TELEVISIO N , W OMANHOOD, A N D NA T I O N 165 (1999)
(discussing the relationship between a nationally broadcast television dramatization of an
important Hindu epic tale and the consolidation of Hindu nationalism in subsequent years).
633. Hugh Trevor-Roper, The Invention of Tradition: The Highland Tradition of
Scotland, in THE INVENTION OF TRADITION, supra note 626, at 15.
634. GIDDENS, supra note 6, at 57 (1999).
635. See Eugene Balibar, Is There a Neo-Racism, in EUGENE BALIBAR &
IMMANUEL WALLERSTE I N , RACE, NATION, CLASS 17, 24-25 (1991) (discussing the way in
which conceptions of national culture inscribe racist assumptions). For a further discussion of
the "racialization" of the idea of national culture, see generally M. BARKER, T HE NEW
RACISM (1981); T.A. VAN DIJK, ELITE DISCOURSE AND RACISM (1993).
127
mechanism by which states bolstered their power and integrated
linguistically and ethnically diverse populations.628
Thus, as Edward Said
observed, nation-states are "interpretive communities' as well as imagined
ones.629
Similarly, Akhil Gupta argues that nationalism is "a distinctively
modern cultural form [that] attempts to create a new kind of spatial and
mythopoetic metanarrative."630
Moreover, Gupta contends, nationalism itself transforms preexisting
narratives of community. "[N]ationalism does not so much erase
existing narratives as recast their difference. The recognition that different
ethnic groups, different locales, and different communities and religions
have each their own role to play in the national project underlines their
differences at the same time that it homogenizes and incorporates them."631
Such national histories "tell of a people passing through time--`our' people,
with `our' ways of life, and `our' culture."632
For example, when Scots get together to celebrate their national
identity, they appear to be steeped in tradition, with men wearing kilts, each
clan having its own tartan, and bagpipes wailing full blast. By means of
these symbols, they show their loyalty to seemingly ancient rituals--rituals
whose origins go far back into antiquity. Yet, as Hugh Trevor-Roper has
argued, these symbols of Scottishness were actually a creation of the
industrial revolution.633
Indeed, the short kilt was invented by an English
industrialist to allow Highlanders to work in the factory. Moreover, Anthony
Giddens observes that even the notion of a tradition is the product of
modernity. In medieval times, by contrast, there was no conception of
tradition "precisely because tradition and custom were everywhere."634
Thus, the idea of a traditional national culture is an imagined narrative,
passed on like an inheritance through generations.635
Through such an
636. See G.R. Johnson, In the Name of the Fatherland: an Analysis of Kin Term
Usage in Patriotic Speech and Literature, 8 INŤL POL. SCI. REV. 165 (1987); NIRA YUVALDAVIS,
GENDER & NA T I O N 15 (1993) (arguing that in a "naturalized image of the
nation....nations not only are eternal and universal but also constitute a natural extension of
family and kinship relations").
637. BILLIG, supra note 543, at 74.
638. See text accompanying notes 604-607, supra.
639. Rée, supra note 505, at 81.
640. Gupta & Ferguson, Ethnography, supra note 468, at 17-18.
641. See Rée, supra note 505, at 81
128
invention of tradition, the nation becomes conceptualized in kinship terms:
the nation is a "family" passing down identity over time, living in the
"motherland" or "fatherland."636
This reference to land brings forth another attribute in the imagining
of a national community: the idea of a homeland. Indeed, this tie between
group identity and land is essential to the modern idea of the nation-state.
After all, many peoples have nurtured a sense of their own communal
distinctiveness "in the specific history of the group, and, above all, in the
myths of group origins and group liberation."637
Nationhood, however,
requires the added element of place. Nationalism is never "beyond
geography." Moreover, this geography is more than a physical setting.
After all, as previously discussed, pre-modern communities had a strong
sense of attachment to their particular physical surroundings.638
Thus, what
makes a nation-state distinctive is the imagining of an overall "country" in
which lived-in localities are united within a wider homeland. The inhabitants
of that homeland will generally be personally familiar with only a small part
of the land, but the nation is conceived as a totality. Thus, it must of
necessity be imagined as a totality, rather than directly apprehended. Yet,
again and again, these "images of virgin territories, self-evident boundaries,
and datable original occupation turn out to be mere mirages: territorial
claims become more obscure, not clearer, the further you dig in the past."639
Finally, as the Social Identity Theory suggests, there can be no "us'
without a "them." Accordingly, the national community can only be
imagined by also imagining foreigners. "The structures of feeling that
enable meaningful relationships with particular locales, constituted and
experienced in a particular manner, necessarily include the marking of `self'
and `other' through identification with larger collectivities. To be part of a
community is to be positioned as a particular kind of subject, similar to
others within the community in some crucial respects and different from
those who are excluded from it...."640
For some nations, the claim to
antiquity will often involve the affirmation of a continuous chain of racial
inheritance going back to a biologically pure past.641
For others, it will be
founded in stories about exceptionalism: that which makes our nation
superior to all others on the planet. But in either case, the imagined
community of the nation-state is very different from the localism of the
fishing village discussed earlier. Whereas that group might also view itself
642. See Billig, supra note 543, at 80.
643. Austin Sarat & Stuart A. Scheingold, State Transformation, Globalization, and
the Possibilities of Cause Lawyering: An Introduction, in CAUSE LAWYERING AND THE STATE
IN A GLOBAL ERA 3, 3 (Austin Sarat & Stuart Scheingold eds. 2001) (hereinafter CAUSE
LAWYERING).
644. See Gupta & Ferguson, Ethnography, supra note 468, at 17; see also Gupta,
supra note 3, at 181 ("We need to pay attention to the structures of feeling that bind people
to geographical units larger or smaller than nations or that crosscut national boundaries.").
645. Id. at 193.
129
in contradistinction to those beyond the village, it can often simply ignore the
terrain beyond. Nationalism, in contrast, is always professed in an
international context. "Even the most extreme...nationalists do not shut out
the outside world from consciousness, but often show an obsessive concern
with the lives and outlooks of foreigners."642
Thus, we see again the nation-state is a particular type of imagined
community, one that could not have existed prior to modernity and the
increasing awareness of an international system. The nation-state, socially
constructed and historically contingent, is only one way of parsing the
modern world. In the next section, I will consider several alternative
visions.
D. Conceptions of Subnational, Supranational, Transnational, and
Cosmopolitan Identities
Although nation-states have become the dominant form of
organizing space in the contemporary world, there are other ways of
imagining community and constructing identity. As we have seen, not only
are processes of placemaking always contested and unstable but also
relations between places are continuously shifting as a result of the political
and economic reorganization of space in the world system. Moreover,
"[j]ust as the formation of nation-states was one of the defining
characteristics of an earlier era, their rapid and often radical transformation
is one of the defining characteristics of ours."643
Thus, we need to look at
nation-state sovereignty against the backdrop of alternative transnational,
international, or subnational identities, or perhaps even against forms of
imagining community that are not territorially based.644
"The structures of
feeling that constitute nationalism need to be set in the context of other
forms of imagining community, other means of endowing significance to
space in the production of location and `home.'"645
1. Subnational Communities
Subnational communities can include political identifications that are
more local than the nation-state--such as provinces, states, towns, and
voting districts--or affiliations that form around specific functions or
activities--such as water regions, geographical areas, block associations,
646. See, e.g., HORSMAN & MARSHALL, supra note 7, at 185.
647. Id.
648. RICHARD FALK, PREDATORY GLOBALIZATION 142 (1999).
649. Id. at 142. The Islamic fundamentalist regimes in Iran, Algeria, and
Afghhanistan in recent years would be examples of the backlash Falk describes.
650. See Horsman & Marshall, supra note 7, at 188.
651. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF
AMERICAN COMMUNITY 27-28 (2000) ("[O]ur schools and neighborhoods don't work so well
when community bonds slacken, [and] our economy, our democracy, and even our health and
happiness depend on adequate stocks of social capital.).
130
bowling leagues, religious institutions, and schools--or commonalities that
derive from a purported ethnic identification that is not coterminous with the
nation-state, such as Basques in Spain, Sikhs in India, Tamils in Sri Lanka,
or even white supremacist militias in the United States. All of these
communities are often spatially localized and therefore may play a more
tangible role in everyday life than broader community allegiances.
It is unclear whether all subnational community identification is on
the rise. Certainly, commentators have noted an increase in subnational
political identifications in the wake of the Soviet Union's collapse and the
internationalization of economic activity.646
Most often this rise in
"tribalism" is viewed as a response to globalization: the argument is that
people "seek a level of comfort in their communities to withstand the
complexity and atomization that modern capitalism has wrought on their
lives and to free themselves from domination by `alien' elites."647
Thus,
Richard Falk argues that one response to economic globalization is a
"backlash politics that looks either to some pre-modern traditional
framework as viable and virtuous...or to ultra-territorialists that seek to keep
capital at home and exclude foreigners to the extent possible."648
These
responses tend to emphasize a "sacred religious or nationalist community of
the saved that is at war with an evil `other,' either secularist or outsider."649
Such subnational communities are therefore viewed as oppositional and
reactive. Alternatively such communities may grow more salient not in
opposition to global events, but simply to fill a power vacuum in moments
when the nation-state loses authority. Thus, for example, the dissolution of
Yugoslavia quickly degenerated into tribalism and a battle waged among
people allied to various imagined ethnic and historical communities.650
If
every nation-state is multi-ethnic at least to some degree, then constructed
communities along those ethnic cleavages will always be available.
Subnational communities can also be viewed, however, in a less
negative light, as the building blocks of civil society. My seemingly fanciful
inclusion of bowling leagues as an example of subnational affiliation was not
accidental. Recently, Robert Putnam has argued that the decline in the
United States of bowling leagues and other localized civic group activities
is a serious problem that has done and will continue to do harm to the
American polity.651
According to Putnam, such groups foster the
development of "social networks and the norms of reciprocity and
652. Id. at 19.
653. See id. at 288-89 (arguing that social capital "allows citizens to resolve
collective problems more easily," provides the trust required for economic transactions, and
serves as a conduit for the free flow of information necessary to a functioning democracy).
654. See EDWARDS, supra note 6, at 136.
655. See id. at 151; see also MEDIATING SUSTAINABILITY: GROWING POLICY
FROM THE GRASSROOTS (Jutta Blauert & Simon Zadek eds., 1998) (exploring ways that rural
communities have sought to influence policies affecting their livelihoods and quality of their
natural environment through collaboration and mediation involving producer organizations,
non-governmental organizations, and advisers); C. MENDE S, FIGHT FOR THE FOREST (1989).
656. See EDWARDS, supra note 6, at 151.
657. Id. at 178.
658. See FALK, supra note 648, at 127-36.
659. See id. at 143.
660. See id.
661. See, e.g., Vandana Shiva, People's Ecology: The Chipko Movement, in
TOWARDS A JUST WORLD PEACE: PERSPECTIVES FROM SOCIAL MOVEMENTS 253 (R.B.J.
Walker & Saul H. Mendlovitz eds., 1987); BRUCE RICH, MORTGAGING THE EARTH: THE
131
trustworthiness that arise from them."652
Without these social networks,
Putnam argues, core societal institutions suffer.653
Those looking to promote global civil society initiatives also tend to
focus on subnational affiliations. For example, Michael Edwards, Director
of the Ford Foundation's Governance and Civil Society Unit, stresses three
ways for communities to respond to global problems such as income
inequality or environmental degradation. First, in the realm of formal
politics, he points to the possibility that civic groups, governments,
businesses, and donor agencies can come together to develop regional
initiatives for economic development or natural resources management.654
Second, in the economic realm, subnational coalitions can help markets
work to the benefit of smaller communities by reducing the benefits
siphoned off by intermediaries. Thus, peasant foresters in Mexico have
begun to negotiate higher prices directly with timber companies, and rubber
tappers in Brazil have been able to retain a higher price for their produce,
solely by organizing themselves into coordinated groups.655
According to
Edwards, collective community action of this sort "stimulates both equity
and efficiency, and builds a sense of solidarity among people who are
sharing risks as well as benefits."656
Finally, he argues that local pressure
groups, membership associations, and specialized authorities are essential
to "build the preconditions of democracy by injecting a wider range of views
and voices into the political arena."657
Similarly, Richard Falk advocates "globalization-from-below" as the
best response to "globalization-from-above."658
He notes, for example, that
green parties in Europe in the 1980s were able to expose the drawbacks of
global capitalism, particularly in the environmental arena.659
Other local
affiliations have formed around specific encroachments, such as the siting
of a nuclear power plant or dam, which have mobilized residents or areas
facing displacement or loss of livelihood.660
Nevertheless, though these
subnational affiliations also have had some success,661
Falk ultimately
WORLD BANK, ENVIRONMENTAL IMPOVERISHMENT, AND THE CRISIS OF DEVELOPMENT
283-93 (1994) (describing ways in which "local populations long marginalized from the grand
narrative of modern history are mobilizing to defend ecological balance and fight against the
destruction of resources upon which their survival depends").
662. See FALK, supra note 648, at 143-44.
663. HORSMAN & MARSHALL, supra note 7, at 172.
664. Friedland & Boden, supra note 425, at 12.
665. Id. at 13; see also Donald Palmer & Roger Friedland, Corporation, Class and
the City System, in STRUCTURAL ANALYSIS OF BU SINESS (Mark S. Mizruchi & Michael
Schwartz eds. 1987).
666. See HORSMAN & MARSHALL, supra note 7, at 201.
667. See Conference Board of New York, Report (1992).
668. See, e.g., Ted C. Fishman, The Joys of Global Investment, HARPERS (Feb.
1997).
669. See e.g., David G. Oedel, Puzzling Banking Law: Its Effects And Purposes, 67
U. COLO. L. REV. 477, 537 (1996) (observing that the "general significance of centralized
supervision of the money supply is rapidly declining in the modern global economy"); SASKIA
SASSEN, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION xi-xii (1995)
132
concludes that transnational civil society efforts are likely to be even more
effective.662
2. Transnational Communities
Turning to such transnational affiliations, we can differentiate them
from those that are international because transnational communities do not
necessarily envision common world membership or global governmental
institutions. Rather, transnational communities are communities of interest
that cut across nation-state boundaries. Perhaps the most important
transnational force in recent years has been the transnational corporation
itself. "The global capitalist system increasingly operates on bases other
than national, and effective means of asserting political control over the
transnational economy and of requiring [trans-national corporations] to be
accountable to political institutions have yet to be developed."663
Once
cities were used as trading centers to connect firms. "Market geographies
were so powerful that what was produced was determined by where it was
produced."664
Now, it is corporate geography, rather than territorial
geography, that determines what is produced and where. "Because of their
newfound capacity to instantaneously coordinate production and distribution
around the globe, to downsize and subcontract, factories and firms have lost
their dependence on particular cities or regions."665
Examples of such transnational corporate activity abound. Indeed,
production by transnational corporations outside their "home base" now
exceeds the volume of all world trade, indicating that trade within firms,
rather than among them, is a growing proportion of world commerce.666
Sales figures for many transnationals rank higher than the gross domestic
product of many countries.667
And, of course, because money can so easily
be transferred through global capital markets around the world668
central
banks are severely limited in their ability to affect national monetary
policy.669
(noting that "[s]tate sovereignty, nation-based citizenship, the institutional apparatus in charge
of regulating the economy, such as central banks and monetary policies--all of these institutions
are being destabilized and even transformed as a result of globalization and the new
technologies"); see also Dani Rodrik, Governance of Economic Globalization, in GOVERNANCE
IN A GLOBALIZING WORLD 347, 351 (Joseph S. Nye, Jr. & John D. Donahue eds., 2000). ("A
familiar result of open economy macroeconomics is that countries cannot simultaneously
maintain independent monetary policies, fixed exchange rates, and an open capital account.").
670. See William H. Lash, III, The Decline of the Nation State in International Trade
and Investment, 18 CARDOZO L. REV. 1011, 1012 (1996) (citing statistics regarding growth of
trade within regional free-trade associations).
671. The ANDEAN Group includes: Bolivia, Colombia, Ecuador, Peru, and
Venezuela.
672. The ASEAN Group includes: Brunei, Indonesia, Malaysia, the Philippines,
Singapore, and Vietnam.
673. For example, the APEC Group includes: Australia, Brunei, Canada, Chile, China,
Hong Kong, Indonesia, Japan, Mexico, Malaysia, New Zealand, Papua New Guinea, the
Philippines, Singapore, Taiwan, Thailand, the United States, and Vietnam.
674. Gupta, supra note 3, at 193-94.
675. APPADURAI, supra note 6, at 167.
676. BENJAMIN BARBER, JIHAD V. MCWORLD (1995) Others argue that
globalization has not led to cultural homogenization. See, e.g., AIHWA ONG, FLEXIBLE
CITIZENSHIP: THE CULTURAL LOGICS OF TRANSNATIONALITY 10 (1999) ("The dispersal
of Coke, McDonalďs Restaurants, and American TV soap operas to villages in West Africa or
to Cairo, Beijing, or Sydney is not bringing about a global cultural uniformity; rather, these
products have had the effect of greatly increasing cultural diversity because of the ways in which
they are interpreted and the way they acquire new meanings in local reception or because the
proliferation of cultural difference is superbly consonant with marketing designs for profit
making."). For further discussion of this "cultural imperialism" question, see generally Hannerz,
supra note 472; ANG IEN, LIVING ROOM W A RS: RETHINKING MEDIA AUDIENCES FOR A
POSTMODERN WORLD (1996); Stuart Hall, Cultural Identity and Diaspora, in IDENTITY:
COMMUNITY, CULTURE, DIFFERENCE 222 (J. Rutherford ed., 1990).
133
Regional trading blocs and free-trade zones create another form of
transnational economic space that is both related to geography and yet
beyond the bounds of nation-states. These zones have proliferated in recent
years.670
Although NAFTA is perhaps the most familiar to Americans,
trade groups now exist in South America671
and Southeast Asia672
(not to
mention the European Union itself), and others cut across even regional
identification.673
All of this commercial activity inevitably affects cultural
identification. "In the transnational public sphere, peoples' identities as
citizens of a nation are multiply refracted by their inventive appropriation of
goods, images, and ideas distributed by multinational corporations."674
Arjun
Appadurai highlights international fashion as one area where the global
impact goes far beyond "cross-national-style cannibalism" to the
"systematic transnational assemblage[ ] of production, taste transfer,
pricing, and exhibition."675
Elsewhere, we see concerns about the impact
of American food, clothing, or mass entertainment, amid concerns about
post-colonial imposition of homogenized taste that was so memorably
captured by Benjamin Barber in the title of his 1995 book Jihad vs.
McWorld.676
677. This example is taken from Kenichi Ohmae, The End of the Nation State, in
THE GLOBALIZATION READER 207, 208 (Frank J. Lechner & John Boli eds., 2000).
678. Arjun Appadurai, Patriotism and Its Futures, in MODERNITY AT LARGE, supra
note 6, at 158, 167.
679. Id.
680. See id.
681. See HORSMAN & MARSHALL, supra note 7, at 179; see also Lindseth, supra
note 298, at 682 ("The notion of multiple membership in overlapping demoi may in fact be an
accurate reflection of the undoubted fragmentation of power and sovereignty in the modern
state, of which the [European Community] is both an agent and a consequence.") (footnote
omitted).
682. See Wolfgang H. Reinicke, The Other World Wide Web, FOREIGN POLICY
(1999/2000).
683. EDWARDS, supra note 6, at 179; see also FALK, supra note 648, at 138
(describing "global civil society"); Richard Falk, An Inquiry Into the Political Economy of World
Order, 1 NE W POLITICAL ECONOMY 13 (1996); M. SHAW, GLOBAL SOCIETY AND
134
Nevertheless, in many areas it is increasingly difficult to define
corporate activity with a particular national moniker. Even leaving aside
transnational mergers such as Daimler-Chrysler, is an automobile sold by
an "American" corporation really a U.S. product, when most of its
component parts are manufactured and assembled abroad? Are jobs
created by Japanese plants in the Mississippi Valley a measure of the health
of the American economy or the Japanese economy?677
Is it American
mass culture when the Sony corporation (nominally Japanese) releases a
film?
Moreover, the modern corporation, the international monetary fund,
the free trade region, and the global commodities market form only one area
in which transnational affiliation has become significant. The impact of
transnationalism is far broader. Indeed, if we look more closely, wecan see
a wide variety of "complex, postnational social formations."678
As
Appadurai has argued, "[t]hese formations are now organized around
principles of finance, recruitment, coordination, communication, and
reproduction that are fundamentally postnational and not just multinational
or international."679
Simply listing examples gives a sense of the scope.
Transnational philanthropic movements such as Habitat for Humanity send
volunteers around the globe to build new environments.680
The emergence
of a diffuse overarching European identity, while not replacing national
identification, has begun to create "a shift towards multiple loyalties, with
the single focus on the nation supplanted by European and regional
affiliations above and below."681
Global public policy networks, ranging in
focus from crime to fisheries to public health, have emerged in the past
decade, bringing together loose alliances of government agencies,
international organizations, corporations, and elements of civil society, such
as nongovernmental organizations, professional associations, and religious
groups.682
In addition, such global public policy networks are only one part of
a "nascent international civil society"683
that includes NGOs such as
INTERNATIONAL RELATIONS (1995); P. Wapner, Politics Beyond the State: Environmental
Activism and World Civic Politics, 47 WORLD POLITICS 311 (1995); M. DE OLIVEIRA & R.
TANDON, CITIZENS STRE N G T H E N I N G GLOBAL CIVIL SOCIETY (1994); T. PRINCEN & M.
FINGER, ENVIRONMENTAL NGOS IN W ORLD POLITICS: LINKING THE LOCAL AND THE
GLOBAL (1994).
684. See EDWARDS, supra note 6, at 179; see also JOHN VOGLER, THE GLOBAL
COMMONS: ENVIRONMENTAL AND T ECHNOLOGICAL GOVERNANCE 20-41 (2d ed., 2000)
(using "regime analysis" to discuss such complex international cooperative efforts.
685. Appadurai, supra note 6, at 168.
686. See generally CAUSE LAWYERING, supra note 643.
687. See Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and
the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957, 959 (1996).
688. See WESTERN MORNING NEWS, 2002 WL 5839498 (Feb. 7, 2002) (Reporting
that, whereas a decade ago dolphins were regularly threatened by tuna fishing with "wall of
death" nets, now, as a result of successful public awareness campaigns, tuna fishing techniques
have changed, and tuna manufacturers routinely label their tuna containers as "dolphin safe");
National Oceanic and Atmospheric Administration, SEA POWER 223232, 2002 WL 13922711
(Jan. 1, 2002) (Reporting a "notable success" in forging "international cooperation that allows
`dolphin-safe' tuna to be harvested, while ensuring the health of dolphin stocks).
689. See Car Crash Claims Life of Greenpeace International Founder, ENV'T NEWS
SERV., 2001 WL 8662796 (Mar. 23, 2001), (crediting Greenpeace with having created pressure
that helped push the French government to end its nuclear testing program).
135
Amnesty International, Oxfam, and Greenpeace, as well as business and
trade union networks and cooperative efforts of government actors
including banking regulators, law-enforcement officials, intelligence
agencies, judiciaries, and other local authorities.684
Such civil society
initiatives function sometimes as an aspect of globalization by challenging
nation-state sovereignty, particularly with regard to human rights norms, and
other times as an organized resistance to globalization, particularly with
regard to economic, trade, environmental, and labor policy. While some
NGOs, like Amnesty International, monitor the activities of the nation-state,
others "work to contain the excesses of nation-states...by assisting
refugees, monitoring peace-keeping arrangements, organizing relief in
famines, and doing the unglamourous work associated with oceans and
tariffs, international health and labor."685
Transnational networks of
lawyers also work to challenge many of the perceived injustices of
globalization.686
Such transnational policy efforts have been deployed with
increasing frequency. The international anti-apartheid movement was
perhaps the first successful global civil society effort to combine
shareholder, consumer, and governmental action, persuading many
corporations, universities, and pension funds to divest themselves of South
African investments long before official national sanctions were in place.687
Similar boycott efforts have resulted in changes to tuna fishing so as to
protect dolphins,688
a decision by the French government to suspend its
nuclear testing program,689
and alteration in Shell Oiľs decommissioning of
690. See Allan Pulsipher & William Daniel IV, Onshore-only Platform Disposition
Needs Exceptions, OIL & GAS J. 64, 2001 WL 9151649 (Jan. 15, 2001) (Reporting that Shelľs
decision to cancel its plan for an "at-sea disposition" of an oil rig followed an unexpectedly
fierce campaign and public boycott)..
691. Multinationals and their Morals, ECONOMIST, Dec. 2, 1995, at 18 (editorial).
692. See Business for Social Responsibility Mission Statement,
<http://www.bsr.org/Meta/about/Mission.cfm>. Similarly, the mission statement of World
Business Council for Sustainable Development evinces a "shared commitment to sustainable
development via the three pillars of economic growth, ecological balance and social progress."
<http://www.wbcsd.ch/aboutus/index.htm>.
693. See Ethan B. Kapstein, The Corporate Ethics Crusade, FOREIGN AFFAIRS 105,
2001 WL 2974607 ( Sep. 1, 2001) ("Many prominent companies...began to experience the full
force of NGO and media rage, with a barrage of stories and Internet-based campaigns aimed
against their products. Students lobbied their universities to sever business ties with companies
that employed sweatshop labor. As a result, several firms changed their behavior, raising
standards abroad and inviting independent monitors to assess their progress.").
694. See Spiro, supra note 687, at 962.
695. See supra text accompanying notes 137-170.
696. See Demko & Wood, supra note 7, at 10.
697. UN Press Releases, no. 5/24111, An Agenda for Peace (June 17, 1992), at 5;
UN Press Release, no. SG/4560 (April 24, 1991).
136
a rig in the North Atlantic.690
In addition, NGOs are increasingly formulating global standards of
behavior. These "codes of conduct" have appeared most prominently with
regard to human rights, environmental protection, and fair labor standards.
As The Economist recently observed "a multinationaľs failure to look like
a good global citizen is increasingly expensive in a world where consumers
and pressure groups can be quickly mobilised behind a cause."691
In
response, prominent corporate leaders, including AT&T, Federal Express,
Honeywell, and AOL Time-Warner have established Business for Social
Responsibility "to enhance the quality of life for current and future
generations."692
And, especially in the wake of the global movement
against sweatshops,693
NGOs have been able to persuade many
corporations to accept independent monitoring of adopted standards.694
Finally, in the area of human rights, NGOs have been active in
pursuing transnational public law litigation of the sort discussed earlier in this
Article695
as well as lobbying on behalf of humanitarian intervention around
the globe. Indeed, in the last decade we have seen that various events,
such as the Chernobyl nuclear disaster, the mistreatment of Kurds in Iraq,
the starvation and lawlessness in Somalia in 1992-93, and the brutal human
rights abuses in Kosovo have all brought international intervention in
defiance of the old idea that national borders and sovereignty were
sacrosanct.696
Two recent Secretaries General of the United Nations have
gone so far as to question whether "the time of absolute and exclusive
sovereignty...has passed."697
In contrast to the development of global civil society, the
development of transnational terrorist organizations such as Al Qaeda are
a much darker example of transnational affiliation. Such organizations can
698. See Benjamin Weiser and Tim Golden, Al Qaeda: Sprawling, Hard-to-Spot Web
of Terrorists-in-Waiting, N.Y. TIMES, (Sep. 30, 2001), at B4; Susan Sachs, An Investigation in
Egypt Illustrates Al Qaeda's Web, N.Y. TIMES (Nov. 20, 2001), at A1; Sam Dillon, Indictment
by Spanish Judge Portrays a Secret Terror Cell, N.Y. TIMES, (Nov. 20, 2001) at A1; Tony
Blair, Responsibility for the Terrorist Atrocities in the United States, 11 September 2001, an
Updated Account (Nov. 14,2001), available at http://www.pm.gov.uk/news.asp?newsID=3025.
Other terrorist (or revolutionary) movements have similarly global links. See e.g. Vladimir
Kucherenko, Cause and Effect Nature of Globalization and Terror Argued, Sept. 13, 2001,
WORLD NEWS CONNECTION, available at Westlaw (citing "the Tamil movement fighting in
Sri Lanka and southern India....[t]he guerrilla armies of Latin America which work closely with
the drugs barons; the Kosovo terrorists in cahoots with the Albanian mafia in Europe; certain
Arab groups; and the Chechen bandit[s]" as examples of quasi-state entities which utilize global
technology to facilitate the flow of money and general coordination).
699. The North Atlantic Treaty, Art. V. (Apr. 4, 1949), available at
http://www.nato.int/docu/basictxt/treaty.htm ("The Parties agree that an armed attack against
one or more of them in Europe or North America shall be considered an attack against them
all and consequently they agree that, if such an armed attack occurs, each of them...will assist
the Party or Parties so attacked by taking forthwith, individually and in concert with the other
Parties, such action as it deems necessary, including the use of armed force, to restore and
maintain the security of the North Atlantic area.").
700. See Nato to Support U.S. Retaliation, CNN.COM, (Sep. 12, 2001), available at
http://www.cnn.com/2001/WORLD/europe/09/12/nato.us (reporting that NATO had invoked
Article V in response to the attacks, the first time NATO had invoked the provision in 52
years).
701. See, e.g., Testimony of Pierre-Richard Prosper, Ambassador at Large for War
Crimes, Before U.S. Senate Judiciary Committee Hearings on Military Tribunals, 2001 WL
1591408, at *17 (Dec. 4, 2001) ("As the Presidenťs order [establishing military commissions]
recognizes, we must call these attacks by the rightful name, `war crime.'").
702. Nevertheless, as Gupta points out this supranational ideal is still premised on the
idea of the world as a body of equal but different nation-states. See Gupta, supra note 3, at 185.
Thus, the U.N. does not fully challenge nation-state sovereignty.
137
mobilize personnel and deploy money around the world,698
functioning as
quasi-state entities. Indeed, it is significant that the United States has been
willing to treat Al Qaeda almost as if it were a sovereign state to be fought
in a "war." NATO invoked Article V of the North Atlantic Treaty (which
pledges each signatory country to defend the others in the event of an
armed attack),699
thereby treating the attack more as a military action than
a criminal one.700
And the Bush administration has asserted the authority
to try Al Qaeda operatives before military commissions, apparently based
in part on the belief that the attacks on the World Trade Center and
Pentagon were not simply crimes, but violations of the laws of war, which
have customarily been reserved for state entities.701
3. Supranational Communities
Whereas transnationalism binds people to communities of interest
across territorial borders, supranationalism asserts the primacy of governing
norms that exist above the nation-state. Perhaps the most obvious example
of such affiliation is the United Nations, which insistently evokes an
overarching narrative of world community.702
Another that has drawn
considerable attention in recent years is the effort to construct a European
703. See ALLAN M. W ILLIAMS, THE EUROPEAN COMMUN I T Y : T H E
CONTRADICTIONS OF INTEGRATION (2d ed., 1994).
704. See Paul Teague, Between Convergence and Divergence: Possibilities for a
European Community System of Labour Market Regulation, 132 INŤL LABOR REV. 391
(1993).
705. See, e.g., ALAN S. MILWARD ET AL., THE FRONTIER OF NATIONAL
SOVEREIGNTY: HISTORY AND THEORY, 1945-1992 (1993).
706. See Lindseth, supra note 298, at 680-83 (describing the "continued pull of the
nation-state" in Europe); Alec Stone, Ratifying Maestricht: France Debates European Union,
11 FRENCH POLITICS & SOC'Y 70 (1993).
707. Gupta, supra note 3, at 186. Alan Milward et al. argue that the European Union
is integrationist only in its plans for monetary union. In contrast, on topics such as
immigration, defense, and foreign policy, the goal of coordinated policies is an attempt at
interdependence. See Milward et al., supra note 705, at 20-30; see also Etienne Balibar, Racism
and Politics in Europe Today, 186 NEW LEFT REV. 5, 16 (1991) ("The state today in Europe
is neither national nor supranational, and this ambiguity does not slacken but only grows deeper
over time.").
708. See Gupta, supra note 3, at 186-87.
709. See Glynn Mapes, Polyglot Students are Weaned Early off Mother Tongue,
WALL ST. J. (Mar. 6, 1990), at A1.
710. Id. (emphasis added).
138
identity that operates beyond the individual nation-states on the continent.
In the post-Maestricht European Union, the line between a
"national" and a European unit has become increasingly blurred.703
We
now see a common currency, the ability to travel without visas, the
development of a European parliament, along with a European
administrative and judicial bureaucracy, the relaxation of trade barriers,
tariffs, and taxation, and the free movement of labor.704
Such practices
certainly resemble the activities and concerns of traditional nation-states so
much that it could be argued that we are indeed seeing the dissolution of old
national boundaries and the creation of a new, united nation of Europe.705
Though it may be unlikely that the nations constituting Europe will
disappear,706
the shift is nevertheless a real and important one. Indeed, we
may even be seeing a hybrid form of governance that is neither a unified
federation nor a single European state, but is perhaps some combination of
the two. "This tension between a federation and a confederation, between
integration and interdependence, has been implicit in the notion of
"Europe" since the beginning."707
In order to understand whether the European Union is really
inculcating notions of supranational community, one might look to the
schools that have been established for the fifteen thousand children of the
employees of the European Community.708
The explicit aim of these
schools is to "create a whole new layer of identity in these kids."709
According to reports, "[g]raduates emerge [from these schools] superbly
educated, usually trilingual, with their nationalism muted--and very, very
European"710
This seems to be the intent. Indeed, the schools strive to
educate students "not as products of a motherland or fatherland but as
711. Id.
712. See id. at A16.
713. See Gupta, supra note 3, at 186-87.
714. See Carlos Closa, The Concept of Citizenship in the Treaty on European Union,
29 COMMON MARKET L. REV. 1137 (1992); MIGRATION AND EUROPEAN INTEGRATION:
THE DYNAMICS OF INCLUSION AND EXCLUSION (Robert Miles & Dietrich Thränhardt eds.,
1995); cf. Biddy Martin & Chandra T. Mohanty, Feminist Politics: Whaťs Home Got to Do with
It?, in FEMINIST STUDIES/CRITICAL STUDIES 191 (Teresa de Lauretis ed., 1986);.
715. See Gupta, supra note 3, at 187.
716. For a sampling of this literature, see generally BRUCE ROBBINS, FEELING
GLOBAL: INTERNATIONALISM IN DISTRESS (1999); HANNERZ, supra note 470;
COSMOPOLITICS, supra note 505; MARTHA C. NUSSBAUM ET AL., FOR LOVE OF COUNTRY:
DEBATING THE LIMITS OF PATRIOTISM (Joshua Cohen ed., 1996); GLOBALIZATION (Arjun
Appadurai ed., 2001); JESSICA BERMAN, MODERNIST FICTION, COSMOPOLITANISM, AND
THE POLITICS OF COMMUNITY 1-27 (2001).
139
Europeans"711
This effort has not been without contentiousness, particularly in the
realm of history, where textbooks from a particular country tend to portray
events in the past from that country's point-of-view.712
Nevertheless, the
European Community schools are attempting to create a new relationship
between peoples and spaces, and a different type of identity in their
students.713
It will be interesting to see whether these schools ultimately
adopt a broader cosmopolitan perspective or whether they simply
reconstruct Europe as a "homeland" that, while not national, is nevertheless
viewed as a territorial fortress to be protected from "outsiders."714
Sadly,
the evidence thus far indicates that a coordination of immigration policies is
leading to precisely this kind of "fortress" mentality, where "Europe" must
be defended against immigrants.715
Thus, though the European Community
schools are engaged in the reconstruction of an identity not based on old
nation-state boundaries, new territorial boundaries may be substituted.
4. Cosmopolitan Communities
Another way of constructing supranational identity is to view the
relevant community as truly global and plural, a cosmopolitan community.716
We can think of cosmopolitanism as an extension of Anderson's idea of the
nation-state as an imagined community. Anderson argued that the rise of
print capitalism allowed people to feel as though they were part of the same
community with others whom they would never meet, thus providing the
basis for imagining the nation-state. Cosmopolitanism takes the argument
a step further. "If people can get as emotional as Anderson says they do
about relations with fellow nationals they never see face-to-face, then now
that print capitalism has become electronic- and digital-capitalism, and now
that this system is so clearly transnational, it would be strange if people did
not get emotional in much the same way, if not necessarily to the same
degree, about others who are not fellow nationals, people bound to them by
717. Bruce Robbins, Introduction Part I: Actually Existing Cosmopolitanism, in
COSMOPOLITICS, supra note 505, at 1, 7.
718. Id. at 3.
719. Martha C. Nussbaum, Patriotism and Cosmopolitanism, in NUSSBAUM ET AL.,
supra note 716, at 3, 7 (quoting Seneca).
720. Id. at 9.
721. Id.
722. Id.
723. Id.
140
some transnational sort of fellowship."717
Indeed, a cosmopolitan perspective may cause us to feel connected
to others in a way that breeds empathy and, perhaps, political engagement.
Cosmopolitans recognize that "[w]e are connected to all sorts of places,
causally if not always consciously, including many that we have never
traveled to, that we have perhaps only seen on television--including the
place where the television itself was manufactured."718
If we truly feel that
connection, we may be more likely to concern ourselves with the plight of
those who manufactured the product.
Cosmopolitanism can be traced at least as far back as the Stoics,
who argued that each of us dwells in two communities: the local community
of our birth, and the community of human argument and aspiration that "is
truly great and truly common, in which we look neither to this corner nor to
that, but measure the boundaries of our nation by the sun."719
Recognizing
the dangers of factionalism that come from allegiance to the political life of
a group, the stoics contended that only by placing primary allegiance in the
world community can mutual problems be addressed.
Martha Nussbaum has recently elaborated on the stoic ideal in an
essay touting the cosmopolitan perspective. According to Nussbaum,
cosmopolitanism does not require one to give up local identifications, which,
she acknowledges, "can be a source of great richness in life."720
Rather,
following the stoics, she suggests that we think of ourselves as surrounded
by a series of concentric circles. "The first one encircles the self, the next
takes in the immediate family, then follows the extended family, then, in
order, neighbors or local groups, fellow city-dwellers, and fellow
countrymen--and we can easily add to this list groupings based on ethnic,
linguistic, historical, professional, gender, or sexual identities. Outside all
these circles is the largest one, humanity as a whole."721
The task then, is
to draw the circles together. Therefore, we need not relinquish special
affiliations and identifications with the various groups. "We need not think
of them as superficial, and we may think of our identity as constituted partly
by them."722
But, Nussbaum argues, "we should all work to make all
human beings part of our community of dialogue and concern, base our
political deliberations on that interlocking commonality, and give the circle
that defines our humanity special attention and respect."723
724. Kwame Anthony Appiah, Cosmopolitan Patriots, in COSMOPOLITICS, supra
note 505, at 91, 91.
725. Id. at 23.
726. See Iris M. Young, The Ideal of Community and the Politics of Difference, in
FEMINISM/POSTMODERNISM 300, 317 (Linda J. Nicholson ed., 1990).
727. Id. at 300.
728. Id. at 302.
729. Id. at 318.
730. Id.
731. Id. at 319.
732. Young resists using the word "community" because of the "urge to unity" the
term conveys, but acknowledges that "[i]n the end it may be a matter of stipulation" whether
one chooses to call her vision "community." Id. at 320.
733. See id. at 319
734. Id.
141
In this vision, people could be "cosmopolitan patriots"724
(to use
Kwame Anthony Appiah's phrase), accepting their responsibility to nurture
the culture and politics of their home community, while at the same time
recognizing that such cultural practices are always shifting, as people move
from place to place. "The result would be a world in which each local form
of human life was the result of long term and persistent processes of
cultural hybridization: a world, in that respect, much like the world we live
in now."725
Iris M. Young has used the ideal of the "unoppressive city" as a
model for a similarly multi-faceted understanding of community.726
She
argues that "community" is always a politically problematic term "because
those motivated by it will tend to suppress differences among themselves or
implicitly to exclude from their political groups persons with whom they do
not identify."727
Thus "[t]he desire for community relies on the same desire
for social wholeness and identification that underlies racism and ethnic
chauvinism on the one hand and political sectarianism on the other."728
Instead, she posits ideal city life as the "`being-together' of strangers."729
These strangers may remain strangers and continue to "experience the
other as other."730
Indeed, they do not necessarily seek an overall group
identification and loyalty. Yet, they are open to "unassimilated
otherness."731
They belong to various distinct groups or cultures, and they
are constantly interacting with other groups. But they do so without seeking
either to assimilate or to reject those others. Such interactions instantiate
an alternative kind of community,732
one that is never a hegemonic
imposition of sameness but that nevertheless prevents different groups from
ever being completely outside one another either.733
In a city's public
spaces, Young argues, we see glimpses of this ideal: "the city consists in a
great diversity of peoples and groups, with a multitude of subcultures and
differentiated activities and functions, whose lives and movements mingle
and overlap...."734
In this vision, there can be community without sameness,
shifting affiliations without ostracism.
735. See ONG, supra note 676.
736. ROBBINS, supra note 505, at 3.
737. BERMAN, supra note 716, at 3-4.
738. Gupta, supra note 3, at 196.
142
Although Young does not refer to her vision as cosmopolitan, it fits
comfortably within the alternative understanding of community I am
sketching here. Cosmopolitanism is emphatically not a model of
international citizenship in the sense of international harmonization and
standardization, but instead is a recognition of multiple refracted differences
where (as in Young's ideal city) people acknowledge links with the "other"
without demanding assimilation or ostracism. Cosmopolitanism seeks
"flexible citizenship,"735
in which people are permitted to shift identities amid
a plurality of possible affiliations and allegiances. These allegiances could
also include non-territorial communities, like those found in Internet
chatrooms. The cosmopolitan worldview shifts back and forth from the
rooted particularity of personal identity to the global possibility of multiple
overlapping communities. "Instead of an ideal of detachment, actually
existing cosmopolitanism is a reality of (re)attachment, multiple attachment,
or attachment at a distance."736
Thus, cosmopolitanism forms perhaps the strongest alternative
vision to the territorially bounded sovereignty of the nation-state. But what
would a system of legal jurisdiction look like in a world based on
cosmopolitan pluralism? The next part takes up this question.
V. Robert Cover and a Cosmopolitan Pluralist Conception of
Jurisdiction
As we have seen, the story of jurisdiction is a story of social space
and community definition. But the very idea of a community is itself always
a narrative construction and always contested. Before we can even begin
to adjudicate rights and responsibilities, or articulate supposedly shared
public values, we inevitably "move into a realm of being-in-common that
rests upon the border between `I' and `we,' a border that may not
necessarily coincide with the political boundaries that surround us."737
Thus, the story of community is necessarily a story of liminality, a way to
negotiate conceptions of identity, commonality, and self-perception.
Moreover, the problem with assuming that national identities are the
relevant matrix for understanding community is that such a conception
"serves to foreclose a richer understanding of location and identity that
would account for the relationships of subjects to multiple collectivities."738
Rather, we must understand that the ability of people to confound the
established spatial orders, either through physicalmovement or through their
own conceptual and political acts of reimagination or jurisdiction-making,
means that space and place can never be "given" and that the process of
739. See Gupta & Ferguson, supra note 445, at 47.
740. Cover, supra note 2, at 176; see also Robert M. Cover, Nomos and Narrative,
97 HARV. L. REV. 4, 9 (1983).
741. Cover, supra note 2, at 176 (quoting GEORGE STEINER, AFTER BABEL 222
(1975)).
742. Id.
743. Id.
744. Id.
745. Id.
746. Cover, Nomos and Narrative, supra note 740, at 58.
143
their sociopolitical construction must always be considered. A jurisdictional
system whose objects are no longer conceived as automatically and
naturally anchored in space can therefore pay particular attention to the
way spaces and places are made, imagined, contested, and enforced.739
In order to understand how such a cosmopolitan pluralist
jurisdictional system might be conceived, this article now turns to a
consideration of the work of Robert Cover. Cover is particularly useful in
this context, I believe, because to Cover, the terrain of law is never limited
to the coercive commands of a sovereign power. Rather, law is constantly
constructed through the contest of various norm-generating communities.
He argues that law functions as a "bridge in normative space," a way of
connecting the "world-that-is" with various imaginings of "worlds-that-
might-be."740
In this view, law is a language that allows us to discuss,
imagine, and ultimately even perhaps generate alternative worlds spun from
present reality. Thus, Cover envisioned law as that which connects
"reality" to "alternity."741
Cover specifically refused to permit the state to have a monopoly
on the use of "law." He argued instead that we should "grant all collective
behavior entailing systematic understandings of our commitments to future
worlds equal claim to the word `law.'"742
By doing so, we will "deny to the
nation state any special status for the collective behavior of its officials or
for their systematic understandings of some special set of `governing'
norms."743
According to Cover, such "official" norms may count as law,
but they must share that title with "thousands of other social
understandings."744
In each case, the question for Cover is what various
"communities believe and with what commitments to those beliefs."745
If the state loses a monopoly on the articulation and exercise of
legal norms, then law becomes a terrain of engagement, where various
communities debate different visions of alternative futures. The idea of
jurisdiction thus becomes a locus for this debate because it is in the
assertion of jurisdiction itself that these norm-generating communities seize
the language of law and purport to articulate visions of future worlds. Such
assertions of jurisdiction, in Cover's view, are now no longer moored to the
state. Indeed, to Cover, jurisdiction is not even a power conferred by a
sovereign. Rather, jurisdiction is, literally, simply the ability to speak as a
community. Thus, he posits a "natural law of jurisdiction,"746
where
747. See, e.g., id. at 43.
748. Cover, supra note 2, at 177-78 (quoting Cover, supra note 740, at 59).
749. See Cover, supra note 2, at 180. For an historical account, see generally
JOSEPHUS, JEWISH ANTIQUITIES, Book XIV 143-84 (R. Marcus trans., Loeb Classical Library
ed., 1976).
750. JOSEPHUS, supra note 749, at 171.
144
communities claim the authority to use the language of the law based on a
right or entitlement that precedes the arbitrary sovereignties of the present
moment.
Cover's vision opens the space for a cosmopolitan pluralist
conception of jurisdiction because he is willing to permit the language and
forms of law to be deployed by individuals and communities outside the
fixed territorial bounds of the state system. Moreover, his generic focus on
"norm-generating communities"747
as the relevant jurisdictional entities
permits us to imagine that such communities will be based on the entire
panoply of multiple overlapping affiliations and attachments people actually
experience in their lives, from the local to the global (including some
affiliations not based on territory at all). This Part begins by outlining
Cover's analysis of two different jurisdictional scenarios. First, he considers
those moments when a judge must courageously "defend his own authority
to sit in judgment over those who exercise extralegal violence in the name
of the state."748
By daring to judge the "King," the assertion of jurisdiction
becomes a revolutionary act. Second, Cover examines instances when a
non-state community asserts a form of legal jurisdiction in order to pursue
a particular normative agenda. In such cases, the community norms being
expressed must somehow persuade more established powers of its
authority. The Part then concludes by using both scenarios to articulate a
cosmopolitan pluralist conception of legal jurisdiction.
A. Jurisdiction as Resistance to Kings
Cover begins by analyzing the idea that jurisdiction could function
as resistance to "Kings," using examples drawn from both ancient Roman
and English history. In the Roman story, set in 47 B.C.E., Herod, governor
of Galilee and King Hyrcanus' right-hand man, executed a leader of a group
of rebels without judicial trial in violation of Jewish law.749
Summoned to
appear before the court, Herod arrived with a bodyguard of troops.
According to aJewish historian, this show of force "overawed them all, and
no one of those who had denounced him before his arrival dared to accuse
him thereafter; instead there was silence and doubt about what was to be
done."750
Nevertheless, Samais, a member of the court rose and addressed
the body, warning of the difficulties that arise if raw power were able to
overcome legal jurisdiction:
751. Id. at 172-76.
752. See id.
753. See id.
754. See Cover, supra note 2, at 183. According to Cover some of these writs
concerned the power of the High Commission to punish puritans for breaches of ecclesiastical
discipline. See id.
755. See Nicholas Fuller's Case, 12 EDWARD COKE, PROHIBITIONS DEL ROY 41;
see also C. BOWEN, THE LION AND THE THRONE: THE LIFE AND TIMES OF SIR EDWARD
COKE 293-301 (1959).
756. See 12 COKE at 63; BOWEN, supra note 755, at 303-04.
145
Fellow councillors and King, I do not myself know of, nor
do I suppose that you can name, anyone who when
summoned before you for trial has ever presented such an
appearance.... But this fine fellow Herod, who is accused
of murder...stands here clothed in purple, with the hair of
his head carefully arranged and with his soldiers around
him, in order to kill us if we condemn him as the law
prescribes, and to save himself by outraging justice. But it
is not Herod whom I should blame for this...but you and
the King for giving him such great license. Be assured,
however, that God is great, and this man, whom you now
wish to release for Hyrcanus' sake, will one day punish
you and the King as well.751
Despite this plea, the court permitted Herod to escape, and he subsequently
assumed royal power, killing Hyrcanus in the process.752
Significantly,
though Herod had all the members of the court executed as well, he spared
Samais,753
perhaps recognizing the power of a person willing to assert legal
jurisdiction even against the King.
Cover then recounts seventeenth-century English disputes over the
use of the writ of prohibition by common law courts to restrain the Court of
High Commission from hearing certain kinds of cases.754
In one celebrated
case, the common law courts issued a writ denying the High Commission
the power to punish a barrister, Nicholas Fuller, for contempt.755
Archbishop Bancroft argued that the question of which court had proper
jurisdiction to hear the case could only be resolved by the King because the
authority of all judges derived from him.756
Lord Coke, in his Prohibitions
del Roy, describes himself as having replied:
[T]rue it was that God had endowed his Majesty with
excellent science and great endowments of nature. But his
Majesty was not learned in the Laws of his Realm of
England;... With which the King was greatly offended,
and said that then he should be under the Law, which was
treason to affirm (as he said). To which I said, that
Bracton saith, Quod Rex non debet esse sub homine, sed
sub Deo et Lege--that the King should not be under man,
757. 12 COKE at 65.
758. Cover, supra note 2, at 185.
759. See id. at 186.
760. Some historians have rejected Coke's account, relying on other seventeenth
century evidence indicating that Coke actually threw himself on the mercy of the King. See
BOWEN, supra note 755, at 305-06,
761. Thomas Paine, Common Sense, reprinted in THE COMPLETE WRITINGS OF
THOMAS PAINE 1, 29 (Philip S. Foner ed., 1969) (1945).
762. This position is most often associated with so-called "international relations
realists." See Anne-Marie Slaughter Burley, International Law and International Relations
Theory: A Dual Agenda, 87 AM. J. INŤL L. 205, 206 (1993) (describing the "Realist
challenge" embodied in "the defiant skepticism...that international law could ever play more
than an epiphenomenal role in the ordering of international life"). From the realist perspective,
states in the international realm always act only in their own national interest. Thus, law is
irrelevant. The only relevant laws are the "laws of politics," and politics is "a struggle for
power." HANS J. MORGENTHAU, POLITICS AMONG NATIO N S: THE STRUGGLE FOR POWER
AND PEACE 4-5, 25-26 (4th ed. 1967).
146
but under God and the Law.757
Thus, as in the Roman example, Coke refuses to place the King beyond or
above the domain of law.
Cover points out that, in both stories, a "courageous judge
challenges the King, affirms the value of an impersonal law or source of
law over the King and places the authority of the Court to speak the
law--its jurisdiction--upon that impersonal foundation."758
At this moment
of triumph, however, the judge is also the most naked.759
By calling the
judge to account, the judge is stripped of the very institutional power that
usually stands behind the Court and enforces its orders. Who is to enforce
legal jurisdiction when the King stands in opposition?
These stories make clear both that courts can exercise power
separate from (and perhaps contrary to) the governing power of the state,
and that the exercise of such power is risky and always contingent on
broader acceptance by communities (and coercive authorities) over time.
After all, though Coke's version of the story may not be factually accurate
(there is some evidence that he actually capitulated to the King's
authority),760
his rhetorical assertion of jurisdiction, memorialized in his
treatise, was undoubtedly part of the Enlightenment movement to limit the
power of Kings and assert a higher rule of law. Indeed, one can see a
direct line from Coke to Thomas Paine, who declared that, in the new
United States of America, law would be King.761
It is, of course, a commonplace to say that courts lack their own
enforcement power, making them dependent on the willingness of states
and peoples to follow judicial orders. This observation is often used as an
argument for the irrelevance of international law itself. Because such
"law" is subject to the realpolitik demands of pure power, so the argument
goes, it is not really law at all.762
But in essence this is no different from
domestic law, where courts can only exercise authority to the extent that
763. This insight derives from a recent work applying Cover's theories to the realm
of international law. See Laura Dickinson, Law as Justice, Law as Violence: Responses to
September 11th
(forthcoming).
764. Cover, Nomos and Narrative, supra note 740, at 58.
147
someone with coercive power chooses to carry out the legal commands.763
Thus, as Cover makes clear, the essence of law is that it makes
aspirational judgments about the future that depend for their power on
whether those judgments accurately reflect evolving norms of the
communities that must choose to obey them. If this is so, then we might see
extraterritorial law-making as no less legitimate than law-making within
territorial bounds. To take the French prosecution of Yahoo! as an
example, it is true that the courťs command is only enforceable if an
American authority will agree to enforce it, but the same courťs decision
against Yahoo!'s French subsidiary is similarly dependent on the
enforcement power of a sovereign. After all, if the executive branch of the
French government refused to enforce the order against the subsidiary, that
order would have no more force than the order against the American
parent.
If the assertion of jurisdiction is always an assertion of community
dominion, then all judicial decisions are reliant on both that community's
acquiescence and the willingness of other communities to recognize and
enforce the jurisdictional assertion. Thus, for a court to dismiss a case
because the original court did not have formally "proper" jurisdiction
provides no answer to Cover's "natural law of jurisdiction."764
Rather,
courts would need to consider whether the prior judgment properly spoke
for a relevant community and whether the substantive norms articulated in
the judgment are attractive, in order to determine if the jurisdictional
assertion and the substantive norms will be recognized.
B. Jurisdiction as the Articulation of Alternative Norms
Cover also considers the bold (or utopian) impulse of a non-state
actor to assert jurisdiction:
Imagine yourself a tribunal. Pretend you have an
audience--a community of some sort that will recognize
you as a tribunal. Now, go all the way. What grandeur of
transformation of the normative universe would you
perform? Will you simply issue a general writ of peace?
A warrant for justice notwithstanding facts and law? Will
you order everyone to be good? Perhaps, perhaps you will
judge the dead? Or even bring God as a defendant? The
possibilities are endless and the question arises whether or
why one should or should not try something outlandish,
765. Cover, supra note 2, at 187.
766. See id. at 192.
767. See id. at 190.
768. See id. at 192.
769. See id. at 193.
148
impossible, or just plain daring.765
The idea of imagining oneself a tribunal sounds fanciful. After all, we might
think, people cannot simply construct their own legal jurisdiction. But that
is true only if we accept a reified conception of jurisdiction based on state
sovereign actors acting within an unchanging set of legal boundaries. Such
a conception, however, has been challenged throughout this article both
because it is normatively unjustifiable as a way of capturing actual
community identifications and social understandings of space, and because
it fails to describe adequately the increasingly extraterritorial and non-state
nature of actual legal practice. Moreover, by imagining the creation of
jurisdiction we can see the transformative way in which alternative
assertions of legal jurisdiction can be linked to the articulation and
development of alternative norms and community definitions.
Cover offers several examples of such jurisdiction creation. In
1538 a group of Jews in Safed, a small city in the Galilee, attempted to
constitute a Jewish court, reviving an old tradition of ordination of judges
that supposedly went back to Moses.766
The problem was that this tradition,
known as Semikah, relied on there being an unbroken line of succession of
ordained judges from Moses to the present, and everyone agreed that the
line had been broken.767
Thus the creation of a court (and recreation of a
tradition) was a daring and controversial one. Could the Semikah be reestablished
simply by following a set of ritual processes? And who should
decide the legitimacy of this new Semikah? Could the leaders of the town
of Safed unilaterally assert their own jurisdiction?
Significantly, the leaders of Safed apparently determined that they
could not assert jurisdiction on their own. Thus, they proclaimed their act
in a message sent to Jerusalem seeking recognition.768
Cover suggests that
such approval was necessary not only as a matter of religious doctrine, but
also because, without assent from Jerusalem, it was hardly likely that the
rest of Judaism would take the experiment seriously.769
This story resembles the process of judgment recognition familiar
to those who study conflict of laws. A tribunal asserts jurisdiction over a
dispute, and then other jurisdictions must decide whether to confer
legitimacy on that tribunal by recognizing and enforcing its judgment. The
religious leaders of Safed, even at the moment that they daringly invented
their own legal jurisdiction, were forced to acknowledge that their invention
was limited by the willingness of others to accept it as normatively
legitimate. As Cover points out, though law is a bridge to an alternative set
of norms, the bridge begins not in alternity but in reality. Therefore there
770. See id. at 187 ("If law...is a bridge from reality to a new world there must be
some constraints on its engineering. Judges must dare, but what happens when they lose that
reality?").
771. But see MONTGOMERY BELGION, VICTORS' JUSTICE 42-131 (1949) (arguing
that the alleged crimes were acts of war in which both sides were engaged and therefore did not
warrant criminal punishment).
772. See id. at 195; see also TUSA & TUSA, THE NUREMBERG T RIAL, ch. 1-5
(1983).
773. See Charles Wyzanski, Jr., Nuremberg--A Fair Trial? Dangerous Precedent,
ATLANTIC MONTHLY, April 1946, reprinted in Charles Wyzanski, Jr., THE NEW MEAN I N G
OF JUSTICE 125, 135 (1966).
774. See id.
775. See Cover, supra note 2, at 197.
776. Id. at 196. Robert Jackson, chief prosecutor at Nuremberg, made a similar
argument at the time:
We have also incorporated [the triaľs] principles into a judicial precedent.
"The power of the precedent," Mr. Justice Cardozo said, "is the power of
the beaten path." One of the Chief obstacles to this trial was the lack of
a beaten path. A judgement such as has been rendered shifts the power of
the precedent to the support of these rules of law. No one can hereafter
deny or fail to know that the principles on which the Nazi leaders are
adjudged to forfeit their lives constitute law--and law with a sanction.
U.S. Dep't of State, Report of Robert H. Jackson, U.S. Representative to the International
Conference on Military Trials, 437 (1945).
777. Charles Wyzanski, Jr., Nuremberg in Retrospect, in THE NEW MEANING OF
JUSTICE, supra note 773, at 137, 144 (emphasis added).
149
are real constraints on the engineering of that bridge.770
A community
seeking to assert jurisdiction must always convince other norm-generating
communities of the acceptability of the normative universe the new
jurisdictional assertion suggests.
Nevertheless, sometimes the norms asserted by new juridical bodies
do take hold. Cover turns next to the decision to invent a court to try war
criminals after World War II. As Cover recounts, although almost nobody
seriously argued that perpetrators should go unpunished,771
there was
considerable disagreement about whether it was appropriate to create a
legal proceeding.772
For example, Charles Wyzanski contended that
punishing those captured in war was not a legal but a political act.773
It
was, he argued, an example of victors' justice,774
or, to use Cover's
typology, a case of Kings using judges to achieve a desired result.775
But Cover argues that the great accomplishment of Nuremberg
(and the proceedings in the Far East that followed) was "the capacity of the
event to project a new legal meaning into the future."776
As Wyzanski
himself later acknowledged, "the outstanding accomplishment of the trial,
which could never have been achieved by any more summary executive
action, is that it crystalized the concept that there already is inherent in the
international community a machinery both of the expression of international
criminal law and for its enforcement."777
Significantly, Wyzanski's
statement reveals that he came to believe not only that the tribunals were
legitimate, but also that they served a norm-creating function that went
778. For a recent work using Cover to support the idea that international trials help
create and develop norms, see generally Dickinson, supra note 763.
779. See Cover, supra note 2, at 197.
780. See EUGEN EHRLICH, FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF
LAW 14-38 (Walter L. Moll trans., 1936); see also OTTO GIERKE, ASSOCIATIONS AND LAW:
T HE CLASSICAL AND EARLY CHRISTIAN STAGES (George Heiman ed. & trans., 1977); OTTO
GIERKE, NATURAL LAW AND THE THEORY OF SOCIETY 1500 TO 1800 (Ernest Barker trans.,
1957).
781. See, e.g., Walter Otto Weyrauch & Maureen Anne Bell, Autonomous
Lawmaking: The Case of the "Gypsies," 103 YALE L.J. 323 (1993) (delineating the subtle
interactions between the legal system of the Romani people and the norms of their host
countries).
782. See, e.g., CAROL WEISBROD, T HE BOUNDARIES OF UTOPIA (1980)
(examining the contractual underpinnings of four religious utopian communities: the Shaker,
Harmony, Oneida, and Zoar). As Marc Galanter has observed, the field of church and state is
the " locus classicus of thinking about the multiplicity of normative orders." Galanter, supra
note 27, at 28; see also Carol Weisbrod, Family, Church and State: An Essay on
Constitutionalism and Religious Authority, 26 U. LOUISVILLE J. FAMILY L. 741 (1988)
(analyzing church-state relations in the United States from a pluralist perspective).
783. See, e.g., LON L. FULLER, ANATOMY OF LAW 43-49 (1968) (describing
"implicit law," which includes everything from rules governing a camping trip among friends
to the customs of merchants).
150
beyond the realm of political or military power and that could not have been
achieved through the use of such power. Thus, the assertion of legal
jurisdiction, more than the assertion of military or political muscle, may help
inculcate norms for the future.778
Moreover, these norms, once created and developed into a
functioning body of human rights law are not so easily circumscribed.
Therefore, although Nuremberg might have been judges in the service of
Kings, the norms created ultimately have contributed to the ability of judges
to challenge Kings.779
We have already discussed the case of Augusto
Pinochet, where a Spanish judge asserted jurisdiction over the former
Chilean dictator and almost succeeded in convincing the world to accede to
his request. Other transnational legal actions, both criminal and civil, have
been attempted or are pending around the world. This normative universe
of human rights enforcement through legal apparatus is a direct result of the
jurisdiction-creation at Nuremberg.
Formal state-sanctioned trials such as Nuremberg are not the only
ways in which legal jurisdiction can be created and exercised, however. As
discussed above, Cover recognized that non-state communities also assert
law-making power in various ways. Indeed, prior to the rise of the state
system, much lawmaking took place in autonomous institutions and groups,
such as cities and guilds, and large geographic areas were left largely
unregulated.780
Even in modern nation-states, we see a whole range of
non-state lawmaking in tribal or ethnic enclaves,781
religious organizations,782
corporation by-laws, social customs,783
private regulatory bodies, and a wide
784. See, e.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS
SETTLE DISPUTES (1991); Stewart Macaulay, Images of Law in Everyday Life: The Lessons of
School, Entertainment, and Spectator Sports, 21 LA W & SOC'Y REV. 185 (1987); Stewart
Macaulay, Non- contractual Relations in Business: A Preliminary Study, 28 AM. SOC. REV. 55
(1963); Stewart Macaulay, Popular Legal Culture: An Introduction, 98 YALE L.J. 1545 (1989).
785. See F.W. Maitland, Trust and Corporation, in SELECTED ESSAYS 141, 18995
(H.D. Hazeltine et. al. eds ., 1936) (1905).
786. See Michael Reisman, Lining Up: The Microlegal System of Queues, 54 U. CIN.
L. REV. 417 (1985); Michael Reisman, Looking, Staring and Glaring: Microlegal Systems and
Public Order, 12 DENV. J. INŤL L. & POĽY 165 (1983); Michael Reisman, Rapping and
Talking to the Boss: The Microlegal System of Two People Talking, in CONFLICT AND
INTEGRATION: COMPARATIVE LA W I N T H E W ORLD T ODAY 61 (Institute of Comparative
Law in Japan ed., 1988).
787. Weyrauch & Bell, supra note 781, at 328 (quoting Thomas A. Cowan & Donald
A. Strickland, The Legal Structure of a Confined Microsociety, at i (Space Sciences Laboratory,
University of California, Berkeley, Internal Working Paper No. 34, 1965)).
788. See, e.g., YVES DEZALAY & BRYANT G. GARTH, DEALING IN VIRTUE:
I N T E R N A T I O N A L COMMERCIAL ARBITRATION AND THE C O N S T R U C T I O N O F A
TRANSNATIONAL LEGAL ORDER (1996).
151
variety of groups, associations, and non-state institutions.784
For example,
in England, bodies such as the church, the stock exchange, the legal
profession, the insurance market, and even the Jockey Club opted for forms
of self-regulation that included machinery for arbitrating disputes among
their own members.785
Even more informally, day-to-day human
encounters such as interacting with strangers on a public street, waiting in
lines, and communicating with subordinates or superiors are all governed by
what Michael Riesman has called "microlegal systems."786
Thus, law is
found not only in the formal decisions of judges, legislators, and
administrators, but also
any place and any time that a group gathers together to
pursue an objective. The rules, open or covert, by which
they govern themselves, and the methods and techniques
by which these rules are enforced is the law of the group.
Judged by this broad standard, most law-making is too
ephemeral to be even noticed. But when conflict within
the group ensues, and it is forced to decide between
conflicting claims, law arises in an overt and relatively
conspicuous fashion. The challenge forces decision, and
decisions make law.787
In some circumstances, official legal actors may delegate lawmaking
authority to non-state entities or recognize the efficacy of non-state
norms. For example, commercial litigation, particularly in the international
arena, increasingly is taking place before non-state arbitral panels.788
Likewise, non-governmental standard-setting bodies, from Underwriters
Laboratories (which tests electrical and other equipment) to the Motion
Picture Association of America (which rates the content of films) to the
Internet Corporation for Assigned Names and Numbers (which administers
the Internet domain name system) construct detailed normative systems
789. See, e.g., Georgia High School Athletic Association v. Waddell, 289 S.E.2d 247
(Ga. 1982) (finding non-justiciable a dispute over a referee's decision affecting the outcome of
a high school football game). But see PGA Tour, Inc. v. Martin, 121 S. Ct. 1879 (2001) (ruling
that golf association had violated the Americans with Disabilities Act by preventing partially
disabled golfer from using a golf cart to compete).
790. Weyrauch & Bell, supra note 781, at 330.
791. See, e.g., JAMES W. HURST, LAW AND ECONOMIC GROWTH: THE LEGAL
HISTORY OF THE LUMBER INDUSTRY IN WISCONSIN 1836-1915, at 290 (1964) (describing
the ways in which local norms in the Wisconsin lumber industry played a significant role in the
way contract law was applied); FULLER, supra note 783, at 57-59 (arguing that the act of
interpretation permits courts to adjust official legal norms to match custom or usage).
792. See Zipporah Batshaw Wiseman, The Limits of Vision: Karl Llewellyn and the
Merchant Rules, 100 HARV. L. REV. 465, 503-19 (1987) (describing Llewellyn's initial drafts
of what became Article 2 of the Uniform Commercial Code).
793. See Weyrauch & Bell, supra note 781, at 329.
152
with the effect of law. Regulation of much financial market activity is left
to private authorities such as stock markets or trade associations like the
National Association of Securities Dealers. And, to take even a rather
mundane example, law-making authority over sports events is generally left
to non-state entities (such as referees) whose decisions are not usually
reviewable except within the system established by the sports authority or
league.789
Significantly, the jurisdiction of all of these non-state actors may be
formally limited to their particular bounded communities, but the norms they
articulate often seep into the decisions of state legal institutions. The most
obvious example of state law recognizing non-state law-making is in the
common law's ongoing incorporation of social custom and practice. As
scholars have recognized, "[d]ecisionmakers work under a continuing
pressure to incorporate customary rules into their decisions."790
Sometimes
such incorporation is explicit, as when a statute is interpreted (or even
supplanted) by reference to industry custom,791
or in Karl Llewellyn's
efforts to codify a law of sales that would accord with merchant reality.792
Even when the impact of non-state norms is unacknowledged, however,
state-sponsored law may only be deemed legitimate to the extent its official
pronouncements reflect the common understandings of private law and
customs.793
Indeed, the invention of legal fictions often indicates that
official norms are being adjusted to better reflect the dictates of non-state
norms and practices.
In addition, non-state assertions of jurisdiction may sometimes take
the guise of a more formal legal proceeding. For example, from December
8 to 12, 2000, a "peoples' tribunal" called the "Women's International War
Crimes Tribunal 2000" sat in Tokyo to hear evidence concerning the
criminal liability for crimes against humanity of both Japan and its highranking
military and political officials for rape and sexual slavery arising out
of Japanese military activity in the Asia Pacific region in the 1930s and
794. For a description of the tribunal, see generally Christine M. Chinkin, Women's
International Tribunal on Japanese Military Sexual Slavery, 95 AM. J. INŤL L. 335 (2001).
795. See id. at 335 (describing Japan's official denials of legal responsibility).
796. See, e.g., Japan Overturns Sex Slave Ruling, BBC NEWS (Mar. 29, 2001)
(Hiroshima High Court overturning only successful claim for compensation in Japanese courts),
available at http://news.bbc.co.uk/hi/english/world/asia- pacific/newsid_1249000/1249236.stm.
797. See Chinkin, supra note 794, at 336 (noting that the primary NGO was a group
called Violence Against Women in War Network, Japan, which was founded in 1998 after the
International Conference on Violence Against Women in War and Armed Conflict Situations
was held in Tokyo in 1997).
798. See id.
799. See id.
800. Id.
801. See id. at 337.
802. See id.
803. See id.
804. Id.
805. See id. at 338.
806. See id.
807. See id.
153
1940s.794
Frustrated by official denials of Japanese government officials795
and failure in lawsuits before state-sanctioned courts,796
survivors of these
alleged offenses turned to international non-governmental organizations.797
Preparatory conferences were held in Tokyo in December 1998 and in
Seoul in February 1999, where an International Organizing Committee for
the tribunal was formed.798
Indictments were presented by prosecution teams from ten
countries, including North and South Korea, China, Japan, the Philippines,
Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands.799
Indeed,
"the shared experience of Japanese colonization brought North and South
Korean prosecutors together with a joint indictment--an expression of
common purpose that continues to be unthinkable at the governmental
level."800
For three days the tribunal heard prosecution statements
supported by oral and documentary evidence.801
Over seventy-five
survivors were present, and many gave evidence.802
The prosecution also
submitted videos of interviews with many other survivors and affidavits in
evidence to the court.803
The panel of judges "represented a broad
geographical distribution, expertise in diverse and relevant areas of domestic
and international law, a mix of practitioner, judicial, and academic expertise,
and...an equitable gender balance."804
After the closing of evidence and argument, the judges deliberated
for a day and, assisted by a team of legal advisers, prepared a preliminary
judgment.805
The judgment, which was presented on the closing day before
a packed hall of over a thousand people,806
found Emperor Hirohito guilty
of the charges on the basis of his command responsibility.807
In addition, the
panel ruled that Japan was responsible under international law applicable at
the time of the events for violation of its treaty obligations and principles of
customary international law relating to slavery, trafficking, forced labor, and
808. See id.
809. See id.
810. See Cover, supra note 2, at 198-201. For the report of this tribunal, see
AGAINST THE CRIME OF SILENCE: PROCEEDINGS OF THE INTERNATIONAL WAR CRIMES
TRIBUNAL (J. Duffett ed. 1968).
811. Richard Falk, The Rights of Peoples (In Particular Indigenous Peoples), in THE
RIGHTS OF PEOPLES 17, 28 (James Crawford ed., 1988).
812. See id. at 28-29.
813. See generally A CRIME OF SILENCE: T H E ARMENIAN GENOCIDE, REPORT OF
THE PERMANENT PEOPLE'S TRIBUNAL (1985).
814. Chinkin, supra note 794, at 338 (quoting Falk, supra note 811, at 29).
815. Indeed Guyora Binder has argued that many of those most interested in the trial
viewed its role as pedagogical or symbolic. See Binder, supra note 435, at 1322 (1989). Binder
quotes French government officials referring to the proceedings as " a pedagogic trial," Israeli
governmental officials describing the trial as "justice that has educational significance," a New
York Times editorial expressing hope that the trial would "educate a new generation," a
statement from a representative of French Resistance veterans that he hoped the trial would
"deepen our understanding," and a comment from Nazi hunter Simon Wiesenthal that the trial
would be " a proper history lesson," and that its true significance was "symbolic." See id. (citing
154
rape, amounting to crimes against humanity.808
Finally, the judges
recommended a range of reparations and made other recommendations.809
Other non-state tribunals have similarly sought to inculcate the
norms embodied in international or international human rights law. For
example, Cover himself describes the 1967 "International War Crimes
Tribunal" convened by Bertrand Russell and Jean Paul Sartre purporting to
adjudicate whether the United States had violated international law in
prosecuting the Vietnam War.810
Likewise, a "Permanent Peoples'
Tribunal" was established in Italy in the 1970s by "private citizens of high
moral authority" from several countries.811
This tribunal continued in
existence for a number of years and examined a series of alleged violations
of international law to which there had been inadequate official response,
including the Soviet military intervention in Afghanistan, that of Indonesia
in East Timor, and the alleged genocide of Armenians by the Turks in the
period from 1915-1919.812
In 1984, another Peoples' Tribunal was
convened to gather evidence concerning the Armenian genocide.813
In some ways, of course, such assertions of jurisdiction are purely
symbolic acts. On the other hand, by claiming authority to articulate norms,
these tribunals insisted that "`law is an instrument of civil society' that does
not belong to governments, whether acting alone or in institutional
arenas."814
Moreover, the reports issued by such tribunals provide a
valuable alternative source of evidence and jurisprudence pertaining to
contested applications of international law. And, even these "quasi-legal"
fora can constitute a form of public acknowledgment to the survivors that
serious crimes were committed against them.
Thus, calling the tribunal "extra-legal" or "symbolic" does nothing
to lessen its claim to produce norms or affect people. After all, even state
entities pursue trials that are largely symbolic, like the French trial against
Klaus Barbie,815
and the proposed Spanish trial of Pinochet himself. In the
sources).
816. See generally, e.g., HAYNER, supra note 437; MINOW, supra note 437.
817. See generally, e.g., Joe R. Feagin & Eileen O'Brien, The Growing Movement
for Reparations, in WHEN SORRY ISN ' T ENOUGH: THE CONTROVERSY OVER APOLOGIES
A N D REPARATIONS FOR HUMAN INJUSTICE 341 (Roy L. Brooks, ed., 1999) (describing
growing reparations movement within the United States).
818. Despite U.S. resistance to the ICC, supra note 170, an overwhelming percentage
of the worlďs countries signed the ICC treaty, and the number of ratifying countries is
approaching 60, at which point the Court will come into existence. For updated information
on the status of the ICC, see Rome Statute of the International Criminal Court, at
http://www.un.org/icc (last updated on Nov. 5, 2001).
819. APPADURAI, supra note 6, at 189.
155
past two decades, we have also seen the rise of Truth and Reconciliation
proceedings, whose primary aim is story-telling in order to create a record
of past abuses.816
Lawsuits in the United States seeking reparations for
slavery817
are another example of people using juridical mechanisms to
affect collective memory. Finally, one might see the overwhelming
consensus concerning the creation of an International Criminal Court818
(a
new form of international jurisdiction-assertion) as evidence that the norms
these non-state tribunals sought to inculcate have indeed taken hold.
C. A Cosmopolitan Pluralist Conception of Legal Jurisdiction
Cover's decentralized vision of legal jurisdiction provides a
framework for thinking about jurisdictional rules that is cosmopolitan in
orientation. As previously discussed, a cosmopolitan conception of
community recognizes the inter-relatedness of peoples and cultures around
the world while nevertheless attending to local variations and the wide
variety of ways that individuals come to understand their identification with
groups. This view imagines overlapping webs of relation, some woven out
of local affiliation, and some unbounded by geography. Cosmopolitan
communities are rooted in the local "as a structure of feeling, a property of
social life, and an ideology of situated community," while still remaining un-
bordered.819
Instead of an ideal of detachment, cosmopolitanism recognizes
multiple attachments across time and space.
Cover likewise understands that there are always multiple normgenerating
communities and therefore conceives of the assertion of
jurisdiction as the act that sets these normative views in conflict. Cover
would allow all the multiple attachments we might call community an
opportunity to establish both their claim to community status and their
particular normative commitments on the legal stage of jurisdiction.
Jurisdiction thus becomes the terrain of engagement for debates about the
appropriate definition of community and the articulation of norms.
In practice, this means that territorially-based limitations on the
assertion of jurisdiction are inappropriate because they reify arbitrary
820. Such an inquiry is not so different from those undertaken in cases that hinge on
the legitimacy of tribal identification. For a discussion of the issues involved in those cases, see,
e.g., James Clifford, Identity in Mashpee, in THE PREDICAMENT OF CULTURE: TWENTIETHCENTURY
ETHNOGRAPHY, LITERATURE AND ART (1988).
821. See Doe v. Unocal Corp., 248 F.3d 915 (9th
Cir. 2001). For a critique of the
decision focusing on the law of corporate groups, see Blumberg, supra note 346, at ___.
156
boundaries and eliminate debate about either community definition or the
evolution of substantive norms. In a cosmopolitan pluralist conception of
jurisdiction, courts could not simply dismiss assertions of jurisdiction based
on a mechanical counting of contacts with a geographically-based sovereign
entity. This is just as well because, as we have seen, such jurisdictional
tests are routinely acknowledged as problematic in a contemporary world
of interconnection and cross-border interaction. Instead, jurisdiction must
be based on whether the parties before the court are appropriately
conceptualized as members of the same community however that
community is defined.820
And a court subsequently being asked to enforce
a judgment would need to address in a more nuanced way both the question
of whether the assertion of jurisdiction that led to the judgment was
legitimate and whether the substantive norms announced by the prior court
should be deemed enforceable.
Such an analysis would not necessarily result in broader assertions
of jurisdiction than under current jurisdictional schemes in all cases. Rather,
a cosmopolitan pluralist approach to jurisdiction merely requires that courts
make explicit an inquiry that current jurisdictional rules obscure. If
jurisdiction is in part about the assertion of community dominion over a
distant actor, then courts should consider the nature of the community that
has allegedly been harmed, the relationship of the dispute to that community,
and the social meaning of asserting dominion over the actor in question.
Accordingly, the jurisdictional inquiry becomes a site for discussion both
about the nature of community affiliation and the changing role of territorial
borders. The precise contours of the jurisdictional norms that would
develop from this process are impossible to predict and would undoubtedly
evolve over time. Most important, however, is that these discussions would
not be truncated by a formulaic test that bears scant relationship to the core
questions underlying the social meaning of jurisdiction.
Conceiving of jurisdiction in terms of community membership and
dominion would not only lead to more explicit discourse regarding
jurisdictions, but might change the outcome of some cases as well. For
example, in a recent case brought in California, plaintiffs alleged that they
were subject to forced labor in the construction of an oil pipeline in
Myanmar and so they sued the company allegedly responsible for the
pipeline. The Ninth Circuit dismissed the case for lack of jurisdiction
because the defendant was a French corporation, despite the fact that the
corporation was directly involved in the operations and decisionmaking of
a California-based subsidiary.821
Had the court focused on community
822. See Blumberg, supra note 346, at ___ n.16 (collecting cases). For a discussion
of the responsibility of corporations to obey human rights norms, see generally Steven R.
Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443
(2001).
823. 330 U.S. 501, 509 (1947). Gilberťs private interest factors are:
the relative ease of access to sources of proof; availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance
of willing, witnesses; possibility of view of premises, if view would be
appropriate to the action; and all other practical problems that make trial
of a case easy, expeditious and inexpensive. There may also be questions
as to the enforcibility of a judgment if one is obtained.
Id. at 843. In delineating the public interest factors, the court noted the following:
Administrative difficulties follow for courts when litigation is piled up in
congested centers instead of being handled at its origin. Jury duty is a
burden that ought not to be imposed upon the people of a community
which has no relation to the litigation. In cases which touch the affairs of
many persons, there is reason for holding the trial in their view and reach
rather than in remote parts of the country where they can learn of it by
report only. There is a local interest in having localized controversies
decided at home. There is an appropriateness, too, in having the trial of
a diversity case in a forum that is at home with the state law that must
govern the case, rather than having a court in some other forum untangle
problems in conflict of laws, and in law foreign to itself.
Id.
824. Blumberg, supra note 346, at ___.
157
membership in a more holistic way, it might have recognized the importance
of bringing the nominally French corporation within the dominion of
California, particularly in a case where the French corporation was
conducting major business activities in California and where the underlying
substantive issues implicated international humanitarian norms.
Similarly, a focus on community membership might lead us to
rethink the scores of cases in which American courts have dismissed, on
forum non conveniens grounds, human rights claims brought by foreign
nationals against American corporations.822
In these cases, courts have
applied the so-called public and private interest factors that were laid out by
the U.S. Supreme Court in 1947 in the case of Gulf Oil Corp. v.
Gilbert.823
The difficulty with these Gilbert factors, however, as Phillip
Blumberg has recently observed, is that they leave "little, if any, room for
argument that the American society and American courts have a social
responsibility to provide an American hearing for alleged misconduct of
American based multinationals...."824
In contrast, a conception of
jurisdiction based on community membership and responsibility would offer
more space to consider such an argument.
Moreover, a pluralist conception of jurisdiction also permits more
opportunity for debate about the substantive norms in these cases. Rather
than simply refusing to hear a claim for lack of personal jurisdiction or on
forum non conveniens grounds, courts would be permitted (or required) to
hear cases and therefore articulate norms of decision. Such norms might
serve a democratizing function. For example, the Internet for many years
825. See Joel R. Reidenberg, The Yahoo Case and the International Democratization
of the Internet (Fordham Law & Econ. Working Paper No. 11, 2001) (arguing that the Yahoo
case signals that the Internet regulatory framework must recognize values adopted by different
states and will not be dictated by technical elites), a v a i l a b l e a t
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=267148 (last visited Feb. 15, 2002).
826. See HAGUE CONVENTION DRAFT, supra note 269, Summary of the Outcome
of the Discussion in Commission II of the First Part of the Diplomatic Conference (Jun. 6-22,
2001), at Art. 21.
827. Larry Kramer, Rethinking Choice of Law, 90 COLUM. L. REV. 313 n.117
(1990).
158
was largely an American creation, and its architecture (both technical and
legal) tended to embed American values such as free speech. The Yahoo!
case raises the possibility that other countries might begin to challenge
America's legal dominance by advancing alternative normative visions
about the shape of online regulation.825
If multiple communities are affected
by online activity (and almost inevitably multiple communities will be
affected), then giving the court systems of those communities greater
latitude to weigh in on the best regulatory approach may be desirable.
For this same reason, a cosmopolitan pluralist conception of
jurisdiction might prompt rethinking about how best to handle so-called "lis
pendens" issues in the international context. Generally, if two parties to a
suit each file complaints in different jurisdictions, the suit filed second in time
is suspended until the first suit has reached a judgment, at which time the
second case is dismissed altogether.826
In a more pluralist understanding of
jurisdiction, however, the prospect of multiple communities reaching varying
decisions in the same dispute is not a problem; indeed, it might even foster
greater norm development because other jurisdictions would need to
determine which of the judgments to recognize.
A more pluralist approach to jurisdiction might encourage forumshopping,
of course, if plaintiffs have more available jurisdictions to hear
their claims. There is no guarantee, however, that under the approach I
suggest assertions of jurisdiction will necessarily be more broad than under
current jurisdictional rules, particularly given recent trends toward an
expansive, effects-based jurisdictional scheme. Indeed, a court focusing on
the definition of community might refuse jurisdiction in situations where an
inquiry analyzing solely the contacts with, effects on, or interests of, a
geographical territory would counsel in favor of asserting jurisdiction.
Moreover, the idea that forum-shopping is necessarily such an evil that it
provides a sufficient reason, in and of itself, to choose one jurisdictional
scheme over another deserves closer scrutiny. As Larry Kramer has
pointed out, "[t]he assumption that it is unfair to allow plaintiffs to [forumshop]
presupposes a `correcť or `fair baseline defining how often the
plaintiff's choice ought to prevail."827
After all, if it is permissible to have
different jurisdictional entities and to have these entities develop different
laws, why should the law not vary depending on where a suit is brought,
and why is it necessarily unfair to give plaintiffs this choice? Brainerd
828. See Brainerd Currie, Survival of Actions: Adjudication Versus Automation in the
Conflict of Laws, in SELECTED ESSAYS ON THE CONFLICT OF LAWS 128, 169 (1963)
(suggesting that, at least in some circumstances, forum-shopping is "positively commendable"
and arguing that "we need to take a harder and closer look at the ideal of uniformity and the
condemnation of forum-shopping"). Currie has, of course, been criticized for emphasizing the
policies underlying substantive laws to the exclusion of more general choice-of-law policies, like
minimizing forum shopping and enhancing uniformity and predictability. See, e.g., Alfred Hill,
Governmental Interest and the Conflict of Laws--A Reply to Professor Currie, 27 U. CHI. L.
REV. 463 (1960); Arthur Taylor von Mehren, Recent Trends in Choice-of-Law Methodology,
60 CORNELL L. REV. 927, 938 (1975).
829. See Kramer, supra note 827, at 313 n.117 ("[T]he argument that plaintiff's
power to shop for a forum is unfair to defendants rests on an unarticulated--and
unexplained--assumption about what each party is entitled to expect in a "fair" system.
[Although] I share the intuition that it is `unfair' if plaintiffs can always choose among the
potentially applicable laws...I am loath to rely on an intuition that I cannot satisfactorily defend
simply because it is widely shared.").
Of course, to the extent forum-shopping creates uncertainty, parties may attempt to
contract around the problem through forum-selection and choice-of-law clauses (at least in
contractually-based cases) or may contractually choose non-litigation alternatives. These
"solutions" depend in part, however, on the law applied to the contractual provisions. See
supra notes 45-48 and accompanying text.
159
Currie, arguably the most influential American choice-of-law theorist,
downplayed the importance of forum-shopping, particularly if preventing it
required sacrificing substantive policies.828
Finally, even if one believes
forum-shopping is a problem, it is difficult to evaluate this concern without
empirical data. For example, other factors beyond choices about
substantive norms may well have a strong impact on forum choice. If most
plaintiffs consult a local attorney, how many attorneys are willing or able to
file suit and litigate in a foreign jurisdiction? How might the existence (or
not) of regular referral arrangements affect this choice? Thus, on both
normative and empirical grounds there is at least some cause to question the
reflexive concern about excessive forum-shopping without further
exploration of the extent of the problem.829
Perhaps most important, a cosmopolitan pluralist conception of
jurisdiction reflects developments already occurring in the international
arena. Universal and transnational jurisdiction, though controversial, are
increasingly being invoked in the area of human rights law. In addition,
many individual nations have shown their willingness to relinquish aspects
of their sovereign adjudicatory authority to transnational or international
bodies, whether they be an international court, such as the European Court
of Justice, or an administrative body, such as the W.T.O. Although
territoriality and nation-state sovereignty are not likely to disappear for the
foreseeable future, it may be that the traditional image of the state is
changing. Agencies of the state are now likely to be linked in networks to
private actors as well as international or transnational agencies. Mixed
coalitions of governments, non-governmental agencies, and (sometimes)
transnational corporations will help redefine the role of government. In
short, global networks will become more complex. "Governance will
830. Joseph O. Keohane & Joseph S. Nye, Jr., Introduction, in GOVERNANCE IN A
GLOBALIZING WORLD, supra note 669, at 1, 19.
831. Of course, other constitutional, statutory, or prudential constraints, such as
standing doctrine, might still cause a court to reject a claim.
832. See Citron v. Zündel, supra note 83.
833. Id.
160
require extensive networked cooperation, and hierarchical rules are likely
to become less effective."830
In such a world, a cosmopolitan conception
of jurisdiction is likely to become the norm.
Finally, the mere assertion of jurisdiction will not lead to a nightmare
world of multiple liability around the globe because enforcement will remain
a contested issue. As the story of the creation of the ordained Jewish court
in Safed indicates, just because a tribunal asserts jurisdiction does not mean
that its judgment will be recognized and enforced elsewhere. Rather, the
judgment will be analyzed both for its assertion of community dominion and
for its substantive norms. Only if the decision can persuade other
communities elsewhere will it be entitled to recognition. To use the Yahoo!
example again, the French court must persuade the American court both
that the norms embodied in the First Amendment must yield to the need to
protect French citizens from accessing Holocaust memorabilia and (more
generally) that the needs of French citizens justify the assertion of French
community dominion over Yahoo! in this instance. What neither court could
do in a cosmopolitan pluralist understanding, however, is simply throw the
case out for lack of jurisdiction. Eschewing the formalistic application of
mechanical jurisdictional rules ensures that substantive discussion of both
community definition and evolving substantive norms will always take
place.831
The recent Canadian Human Rights Commission decision ordering
American resident Ernst Zündel to remove anti-Semitic hate speech from
his California-based website provides an example of the way even possibly
unenforceable decisions may nevertheless be important.832
Indeed, the
Commission's order explicitly acknowledged the difficulty of enforcement,
but nevertheless insisted that there was "a significant symbolic value in the
public denunciation" of Zündeľs actions and a "potential educative and
ultimately larger preventative benefit that can be achieved by open
discussion of the principles" enunciated in its decision.833
By refusing to
dismiss the case on jurisdictional grounds, the Commission was able to
articulate norms that might have persuasive value both in Canada and
elsewhere over time. And, if a United States court subsequently were to
refuse to enforce the order on First Amendment grounds (as in the Yahoo!
case), such a decision would likewise provide an opportunity for debate
about both the most appropriate community to exercise dominion over
Zündel and the most attractive normative stance with regard to Internet
freedom of expression.
834. See supra text accompanying notes 306-319.
835. See supra note 307.
836. See Dinwoodie, supra note 271, at 548.
837. See Deborah A. Ramirez , The Mixed Jury and the Ancient Custom of Trial by
Jury De Medietate Linguae: A History and Proposal for Change, 74 B.U. L. REV. 777, 781
(1994); see also MARIANNE CONSTABLE, THE LAW OF THE OTHER: THE MIXED JURY AND
CHANGING CONCEPTIONS OF CITIZENSHIP, LAW, AND KNOWLEDGE 8 (1994).
838. Id. at 17 & n.82 (quoting Coke and citing other sources).
839. See id. at 18-21; Ramirez, supra note 837, at 783-84.
840. See id. at 17.
841. See id. at 23-25; .Ramirez, supra note 837, at 784-86. Indeed, mixed juries for
merchants apparently helped spawn the lex mercatoria on which Dinwoodie's conception builds.
See CONSTABLE, supra note 837, at 23-25.
161
A corollary question to jurisdiction is what law to apply to these
transnational (or cosmopolitan) assertions of jurisdiction. While a full
elaboration of this issue is beyond the scope of this Article, Graeme
Dinwoodie's application of the substantive law method, discussed
previously,834
provides the appropriate starting point. Dinwoodie argues for
a revival of the old lex mercatoria,835
suggesting that the judicial role in
multistate cases should permit common law development just as in domestic
cases.836
By definition, a dispute involving multiple communities means that
there will be multiple norms available to apply. Instead of using mechanical
choice of law rules to choose one set of norms or the other, Dinwoodie
argues that courts should be free to develop an appropriate rule from an
amalgam of these norms.
In Dinwoodie's vision, national courts would apply international
norms, which in turn would shape and develop both the international norms
themselves and even the domestic norms over time, much as Cover
observed human rights norms evolving since Nuremberg. This approach
suggests that a true international common law might arise. Even if this
seems too utopian, multinational actors would need not fear outlier
jurisdictions because, again, those jurisdictions would always be obligated
to persuade courts elsewhere to enforce their judgments. Thus, the
enforcement arena would provide a powerful incentive to courts not to
move too far away from a developing international consensus.
In addition to the development of a transnational common law,
another way of accommodating multiple community affiliations also has
deep historical roots. From 1190 until 1870, English law used the so-called
"mixed jury," or jury de medietate linguae, with members of two different
communities sitting side-by-side to settle disputes when people from the two
communities came into conflict.837
Coke attributed this practice to the
Saxons, for whom "twelve men versed in the law, six English and an equal
number Welsh, dispense justice to the English and Welsh."838
Regional
differences, however, were not the only type of community variation
recognized in the mixed jury custom. Mixed juries were also used in
disputes between Jews and Christians,839
city and country dwellers,840
merchants and non-merchants,841
and members of different social
842. See id. at 17.
843. See Katherine A. Hermes, Jurisdiction in the Colonial Northeast: Algonquin,
English, and French Governance, 43 AM. J. LEGAL HIST. 52, 64-65 (1999).
844. See Ramirez, supra note 837, at 790 & n.85 (noting that, "[a]t various times
between 1674 and 1911, Kentucky, Maryland, Massachusetts, Pennsylvania, New York,
Virginia, and South Carolina each provided for mixed juries").
845. See Wiseman, supra note 792, at 512-15 (describing Llewellyn's merchant
tribunal proposal).
846. See Batson v. Kentucky, 476 U.S. 79 (1986) (forbidding prosecutors from
challenging jurors solely on the basis of race); J.E.B. v. Alabama, 511 U.S. 127 (1994)
(extending Batson to peremptory challenges based on gender).
162
classes.842
In the United States, the custom of mixed juries was imported
from England and used in disputes between settlers and native
tribespeople843
and in other inter-jurisdictional disputes at least through the
beginning of the twentieth century.844
Karl Llewellyn's proposal that
merchant experts sit as a tribunal to hear commercial disputes relies on a
similar idea that specialized communities may possess relevant knowledge
or background that should be called upon in rendering just verdicts.845
And
the principles underlying mixed juries still find expression today in the line
of U.S. Supreme Court decisions aimed at ensuring that jury panels reflect
both racial and gender diversity846
and in the practice of having judges from
multiple countries preside at international tribunals. The custom of the
mixed jury could be revived and expanded, however, to encourage the
development of norms that cut across boundaries of individual territorial
states.
A truly pluralist conception of jurisdiction also allows us to make
sense of non-state assertions of jurisdiction. In order for the legal norms
of a non-state community to be enforced beyond its boundaries, those norms
must be adopted by those with coercive power. In a sense, this is how even
state-sanctioned courts operate because they lack their own enforcement
power. Courts always issue decisions at the sufferance of their "King," and
if they choose to defy the entity that enforces their judgments, they will
need to appeal to a broad base of popular support or risk being treated as
a political irrelevance. Likewise, non-state jurisdictional assertions, such as
the decision to apply the norms of merchants or the pronouncements of the
permanent people's tribunals, must make a strong case to the governments
of the world and other political actors that their assertion of community
dominion is appropriate and that the substantive norms they express are
worth adopting. By extending the term jurisdiction to these non-state normproducing
acts, multiple communities can attempt to claim the mantle of law,
making it more likely that we will notice these visions of the bridge from
reality to alternity.
One might think that current jurisdictional rules are already a proxy
for the determination that a community legitimately can assert dominion
over a controversy. Indeed, this Article has already argued that
847. See supra, Section IIIB.
163
jurisdictional rules play precisely that role.847
There are, however, two
significant limitations regarding the particular mapping of jurisdiction and
choice of law that we have now. First, most jurisdictional systems (both in
the United States and elsewhere) are moored to geographical territory.
Even the more flexible International Shoe "minimum contacts" test is
based on contacts with or effects on a physical location. This is problematic
because, as we have seen, physical territory and geographical boundaries
are not necessarily the only, or even the most appropriate way of defining
community. Second, current jurisdictional schemes tend to assume that
territorially defined sovereign entities--nation-states (or individual states
within federal systems)--are the only possibly relevant category of
community affiliation. Yet, again as we have seen, this is an overly narrow
view that does not do sufficient justiceto the multiple, overlapping, and often
nonterritorial conceptions of community that exist in the world. Thus, we
need a more capacious view of what constitutes a relevant jurisdictional
community, one that neither limits the jurisdictional assertion based on
contact with a geographical locality nor limits the range of possible
community affiliations that might be relevant.
In a cosmopolitan pluralist conception of jurisdiction, courts could
not simply dismiss assertions of jurisdiction based on a mechanical counting
of contacts with a geographically-based sovereign entity. This is just as
well because, as we have seen, such jurisdictional tests are routinely
acknowledged as problematic in a contemporary world of interconnection
and cross-border interaction. Rather, the court being asked to enforce a
judgment would need to address in a more nuanced way both the question
of whether the assertion of jurisdiction that led to the judgment was
legitimate and whether the substantive norms announced by the prior court
are enforceable.
A detailed description of precisely how this pluralist jurisdictional
system would operate in practice is beyond the scope of this Article, and so
I will not here return to the various challenges and responses surveyed in
Parts One and Two in order to apply this approach. Indeed, given that such
a model relies on the common law development of jurisdictional norms, a
programmatic mapping of the contours of the analysis is inappropriate.
Instead, the important point is merely to open up the opportunity to consider
how our understanding of jurisdiction might respond to changing conceptions
of physical space, territorial boundaries, and community definition.
Moreover, even if one were to reject a more pluralist conception and retain
current jurisdictional frameworks, the discussion in this Article makes clear
that simply assuming that territorialboundaries and nation-state communities
are somehow the natural and inevitable basis for a system of jurisdictional
rules is not an option. Rather, any jurisdictional system needs to be justified
(both descriptively and normatively) as the appropriate way of organizing
848. This analogy is derived from CURTIN, supra note5 , at 1-2.
849. See EDWARD N. ANDRADE, SIR ISAAC NEWTON (1954).
850. Ford, supra note 402, at 851.
851. Id.
852. See, e.g., STEP HEN HAWKING, A BRIEF HISTORY OF TIME: UPDATED AND
EXPANDED TENTH ANNIVERSARY EDITION 55-63; 188-90 (1998) (discussing the uncertainty
principle).
.
164
space and conceiving of community affiliation in the contemporary world.
Conclusion
At nearly the same historical moment that the Peace of Westphalia
established the spatial jurisdictional orientation of the modern nation-state,
Isaac Newton also established a new way of thinking about space.848
In
place of the medieval conception of the physical world as a living organism,
Newton argued that space was absolute, always similar, and immovable.849
Both the Newtonian and the Westphalian understanding of space
survived and thrived into the 20th
century. Newton's formulation of
mathematical laws for physical space was developed and refined, and it
became part of the accepted understanding of the universe. Similarly, the
territorial boundaries that define legal jurisdiction, though hopelessly
arbitrary, have continued to be absolutely compelling. An unwavering faith
in the necessity and legitimacy of jurisdictional boundaries seems to us to be
not only a foundation of our government, but a precondition of any
government.850
As Richard Ford has observed, our reaction to the formality
of jurisdictional arrangements is "something akin to the reverence and awe
we reserve for natural phenomena beyond our control or
comprehension."851
In the past century, Albert Einstein and Stephen Hawking have
challenged the Newtonian understanding of space and introduced
conceptions of fragmentation and indeterminacy into the Newtonian
model.852
Could we stand to introduce those same elements into our
understanding of jurisdiction? And if we did, what might the world look
like? Would nation-states necessarily crumble? Would all that is solid melt
into air?
I think not. To assert that geographical boundaries and nation-state
sovereignty are no longer the only relevant way of defining space or
community in the modern world is not to deny that they retain some salience
as influences on personal identity. Indeed, even if we were all
cosmopolitans in Nussbaum's sense, with concentric circles of allegiance,
at least one of those circles might include our geographical locale and
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another might include the nation-state in which we hold citizenship.
Nevertheless, although such identities remain important, they are
not the only ways of conceptualizing space or identifying with a community.
Allegiance to a physical location or a national identity are only two of the
multiple conceptions of belonging and membership that people may
experience. In our daily lives, we all have multiple, shifting, overlapping
affiliations. We belong to many communities. Some may be local, some far
away, and some may exist independently of spatial location.
Jurisdiction is the way that law traces the topography of these
multiple affiliations. A jurisdictional assertion extends a community's
dominion over the parties to a legal action. Thus, it is a statement that all
those before the court are at least in some way members of the same
community and that they can appropriately be bound together in the physical
space of the courtroom to resolve the particular issue in dispute. A n
assertion of jurisdiction, therefore, is never simply a legal judgment, but a
socially embedded, meaning-producing act. Conceptions of jurisdiction
become internalized and help to shape the social construction of place and
community. And, in turn, as social conceptions of place and community
change, jurisdictional rules do as well. But if that is so, then what are we
to make of the fact that our current jurisdictional system seems to
correspond so poorly to contemporary socialconceptions of space, distance,
borders, and community?
The challenges posed both by the rise of online communication and
more generally by the forces of globalization have brought this question to
the fore. Repeatedly over the past several years legal conundrums have
arisen around a range of issues that can broadly be defined as jurisdictional
in nature. These challenges, some of which were surveyed in Part One, are
not necessarily unanswerable, but at the very least they indicate that the
reality of human interaction is chafing against the strictures our current
conception of legal jurisdiction imposes. In such moments of transition, as
legal forms adapt to a changing socialenvironment, a window of opportunity
opens. For a brief moment, we have the chance to rethink established
verities and question whether a particular set of doctrines--even if it can
be cobbled together to work one more time--makes sense anymore given
the changing context of social life.
In this article I have embraced the opportunity to interrogate the
dominant assumptions underlying legal jurisdiction. Instead of focusing on
doctrinal questions regarding how best to "solve" the specific jurisdictional
dilemmas that have been raised to date, I have instead taken a step back
and asked a series of foundational questions. What does it mean in social
terms to assert jurisdiction? How are conceptions of jurisdiction related to
the way people experience physical space, territorial borders, distance, and
community? Why should the nation-state continue to be the dominant
player on the field of legal jurisdiction? Are there other forms of community
affiliations that the law might recognize?
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There are two principal reasons for asking such questions. First,
we gain a better understanding of the world of experience on which the
legal world of jurisdiction is mapped, and we therefore can develop a richer
descriptive account of what it means for a juridical body to assert
jurisdiction over a controversy. Second, we can begin to conceive
alternative approaches to jurisdictional questions that might better respond
to the contested and constantly shifting processes by which people imagine
communities and their membership in them.
Although I have sketched one such alternative approach here, it is
less important that others embrace this particular conception of jurisdiction
than that they begin to see the social meaning of legal jurisdiction as an
important field of discourse and study. After all, there is nothing natural or
inevitable about using ideas of fixed geographical boundaries and nationstate
sovereignty as the basis for a jurisdictional system. It is simply one
approach among many and it therefore must be justified both as an accurate
reflection of people's lived reality and as a normatively attractive
jurisdictional system in its own right. Accordingly, there is much work to be
done.
In the end, I see jurisdiction and recognition of judgments as fruitful
sites for thinking about the relationship between the "local," the "national,"
and the "global" and for mapping the evolving ways in which people
construct identity by reference to places and/or communities. No one really
knows whether the nation-state is dying or thriving, whether globalization is
truly a new phenomenon or a lot of hype, whether the Internet defies
territorial borders or whether geographical boundaries can be reinscribed
into cyberspace, whether the world is fragmenting into subnational conflicts,
or conversely, whether it is moving towards an era of global cooperation
and international governance. Or, perhaps, there's a cosmopolitan future
awaiting us, when people will come to interpret themselves without using
the nation-state as a frame of reference.
Whatever the answers to these imponderables, they will be
reflected and constructed in the domain of legal jurisdiction. And, if we pay
attention to the social meanings embedded in jurisdictional debates, we
might just possibly catch a glimpse of where we're headed.