Parochialism and pluralism in cyberspace regulation.

• Author: Stein, Allan R.
• Position: Choice of Law and Jurisdiction on the Internet

I predicted a few years ago that the greater connectedness brought about by globalization in general, and technology in particular, would introduce a new humility into our jurisdictional attitudes. (1) Jurisdictional and choice-of-law rules premised on hermetically sealed sovereignty, where governments had exclusive power over their citizens and territory, did not fit a world in which the power and influence of governments extended beyond their borders and collided with conflicting legal norms within their borders. Connectedness, I concluded, would inevitably produce a new sensitivity in conflict of laws to the multiple sources of power and authority with which people must contend in a wired world. (2)

Professors Berman and Reidenberg, while sympathetic with that perspective, have here suggested an appropriate caveat: technology can both connect and separate, and globalization can turn governments both outward toward cooperation and inward toward isolation. Connectedness can make us xenophobic as well as cosmopolitan.

Thus, Professor Reidenberg discusses how technology enables states to exercise control over multistate electronic transactions in order to enforce their own, legitimate regulatory preferences. (3) He is generally sympathetic to such assertions of national authority and rejects the plea of "Internet separatists" for governments to leave cyberspace alone. (4)

Professor Berman, in contrast, finds the turn inward more troubling. He presents three "case studies" of "parochial" application of forum law by American courts that suggest a disturbing trend. (5) I want to focus here principally on his essay. Professor Berman asserts that a "cosmopolitan" perspective would provide a better approach to multistate problems in an interconnected world. Such an approach, he suggests, should take account of the multiple communities with which people increasingly affiliate, not merely the interests of affected governments. (6) This corresponds with Professor Berman's earlier advocacy of legal pluralism in cyberspace regulation, which called upon courts to take account of the fact that legal norms are not produced exclusively by governments, and other norm-generating communities increasingly defy territorial definition. (7)

Berman's cosmopolitanism melds two separate critiques into one: a parochialism critique which bemoans the knee-jerk tendency of courts to apply their own law without taking adequate account of the extraterritorial implications of their adjudication, sometimes without even recognizing the presence of a choice of law; (8) and a pluralism critique which bemoans the tendency of courts to think about government-generated legal norms as the only available sources of applicable law. (9)

Professor Berman's parochialism critique is embraced at some level by most of the dominant approaches to conflict of laws, from Beale's vested rights theory to modern "substantivism." The core premise of virtually every conflicts theory is a distinction between jurisdiction and choice of law; just because a judge has authority to resolve a dispute does not mean that forum law necessarily provides the appropriate measure of the parties' rights. (10) As acknowledged by Professor Berman, contemporary conflicts approaches already take into account the multiplicity of states affected by the parties' activities. (11) Professor Berman attempts to distinguish his approach from both the "most significant relationship" focus of the Restatement (Second) of Conflict of Laws (12) as well as the "reasonableness" test of the Restatement (Third) of Foreign Relations Law by his openness to nonterritorial, non-state-generated, legal norms:

Perhaps most importantly, because a focus on community affiliation may lead us to consider nonstate communities, a cosmopolitan framework is far more likely to allow a pluralist consideration of how norms generated outside of formal governmental channels may bind sub-, supra-, and transnational communities. (13) Yet, as discussed below, (14) this pluralistic perspective is doing no work in his case analysis. His case analysis focuses exclusively on the interest of affected states, not the interests of other nonterritorial communities. Drained of its pluralistic emphasis, "cosmopolitanism" seems little more than a plea to avoid parochial choices of law. Few, if any, conflicts scholars would take issue with Professor Berman's plea that courts at least recognize the existence of a choice of law. In this sense of wanting courts to be other-regarding, we are all, or mostly all, cosmopolitanists. He is surely right that courts must be increasingly attuned to the extraterritorial implications of their attempts to regulate global activity through adjudication.

Professor Berman's parochialism critique of Brainard Currie's "interest analysis" is particularly trenchant. It is myopic for courts to assume that the only interest of the forum state is having its own law applied for the benefit of its own citizens. States have a long-term interest in crafting and enforcing a coherent transnational legal order:

[F]rom a long-term geopolitical perspective, whether or not an individual citizen wins a lawsuit is actually of very little interest to a state. Instead, states may have an interest in being seen to comply with an agreed-upon international order. States benefit from a shared world system, with its interlocking set of reciprocal benefits and burdens. If a state is too parochial in pursuit of its short-term interests, it may damage its longer-term goals by creating a lack of trust in other states. (15) Unlike Professor Berman, I do see evidence that courts are increasingly sensitive to this perspective. The evolution of the courts' personal jurisdiction doctrine in Internet-related disputes suggests that courts are coming to appreciate that excessive assertions of authority can unduly inhibit extraterritorial activity beyond the courts' legitimate regulatory authority. (16)

The more innovative, but less convincing, piece of Professor Berman's critique is his suggestion that courts need to be more other-regarding not only toward competing legal rules promulgated by governments, but toward norms of behavior generated by nongovernmental, nonterritorial communities:

Such a jurisprudence looks to a variety of possible legal sources. First, courts can consider the multiple domestic norms of nation-states affected by the dispute.... Second, international treaties, agreements, or other statements of evolving international or transnational norms may provide relevant guidance. Third, courts should consider community affiliations that are not associated with nation-states, such as industry standards, norms of behavior promulgated by non-governmental organizations, community custom, and rules associated with particular activities, such as Internet usage. (17) This critique resonates with the seminal and controversial work by David Post and David Johnson advocating a hands-off approach to internet regulation in deference to the self-regulating norms generated by the community of Internet users. (18) I have previously expressed skepticism that the universe of Internet users was a sufficiently coherent community to generate the kind of legal order to which states sometimes defer. (19) I am equally skeptical that courts could make sense out of treating litigants as "cosmopolitan patriots," (20) with rights and obligations defined not merely by reference to the law of the governments with connections to their controversy, but by reference to their "multiple overlapping communities." (21)

None of the parochialism that Professor Berman identifies in the case law is in any way attributable to an excessive focus on state as opposed to nonstate or nonterritorial interests. (22) Indeed, if we look carefully at the cases discussed by Professor Berman, I'm not sure that we can even discern a pattern of parochialism, let alone recognize a problem that could be advanced by a pluralistic perspective.

In two out of the three cases discussed in the essay, Professor Berman concludes that the courts ultimately reached a defensible outcome in...