23 May 1998
Thanks to Peter Swire
"Against Cyberanarchy" Forthcoming, 65 University of Chicago Law Review (1998) BY: JACK GOLDSMITH University of Chicago Law School DATE: November 1997 CONTACT: Prof. Jack Goldsmith E-MAIL: MAILTO:email@example.com POSTAL: 1111 E. 60th Street, Chicago, Illinois, 60637 PHONE: (773) 702-3306 FAX: (773) 702-0730 LSN-REF: CYBERSPACE:APS98-107 TO SUBSCRIBE TO THE UNIVERSITY OF CHICAGO LAW REVIEW: Contact The University of Chicago Press, 5720 S. Woodlawn Ave., Chicago, IL 60637-1603. Phone: (312) 702-7600. The Supreme Court's invalidation on First Amendment grounds of the Communications Decency Act raises the more fundamental question whether the state can regulate cyberspace transactions at all. Several "regulation skeptics" have argued that it cannot. They contend that national regulation of cyberspace is infeasible and illegitimate, and they conclude that national regulators should defer to the self-regulatory efforts of cyberspace participants. This article challenges these claims. The skeptics overstate the differences between cyberspace transactions and other transnational transactions. And they underestimate the potential of traditional legal tools and technology to resolve the multi-jurisdictional regulatory problems implicated by cyberspace. The article argues that cyberspace transactions are no less resistant to the tools of conflict of laws, and do not inherently warrant any more deference by national regulators, than other complex transnational transactions. It then explains how cyberspace can be grounded in real-space law in a way that both facilitates self-regulation and reasonably accommodates oft-conflicting national regulatory concerns.