(311)
University of Pennsylvania
Law Review
FOUNDED 1852
________________
Formerly
American Law Register
________________________
VOL. 151 DECEMBER 2002 NO. 2
ARTICLES
THE GLOBALIZATION OF JURISDICTION
PAUL SCHIFF BERMAN
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 juris-
diction, 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 coun-
tries? 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

Associate Professor, University of Connecticut School of Law. I owe the following
people special thanks for help at various stages of this project: Kenneth Anderson, Ra-
chel Barkow, Lofty Becker, Patricia L. Bellia, Bethany Berger, Phillip Blumberg, Anuj Desai,
Laura Dickinson, Mark Drumbl, Graeme Dinwoodie, Christine Haight Farley, Marc Galanter,
Kate Gordon, Robert W. Gordon, Rhoda Howard-Hassman, Helen
Hershkoff, Dan Hunter, Mark W. Janis, Jonathan Kahn, Lisa Kloppenberg, Harold Hongju
Koh, Peter Lindseth, Stewart Macaulay, Sally Merry, Diane Orentlicher, Leonard Orland, Jer-
emy Paul, Richard Pomp, David G. Post, Ellen Rigsby, Mark Rosen, Richard J. Ross, Ted
Ruger, Vicki Schultz, Gregory Shaffer, Anne-Marie Slaughter, Avi Soifer, Catherine T.
Struve, Colin Tait, David R. Tillinghast, Leti Volpp, Steven Wilf, and Carol Weisbrod. This
Article was selected for presentation at the Stanford/Yale Junior Faculty Forum, held at Yale
Law School in June 2002. Versions of the Article have also been presented at the Annual
312 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
* * * * * *
[This] is a plea to grant all collective behavior entailing systematic under-
standings of our commitments to future worlds equal claim to the word "law."
The upshot of such a claim, of course, is to deny to the nation state any special
status for the collective behavior of its officials or for their systematic under-
standings of some special set of "governing" norms. The status of such "offi-
cial" behavior and "official" 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 na-
tionalism 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 . . . .
Meeting of the Association for the Study of Law, Culture, and the Humanities, at the Univer-
sity of Pennsylvania School of Law; at the Junior Faculty Workshop convened at Northeastern
University School of Law; and at faculty workshop sessions held at Georgetown University
Law Center, American University's Washington College of Law, University of Wisconsin
Law School, Washington & Lee Law School, Chicago-Kent School of Law, and the Univer-
sity 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, Dave Gaetano, Sarah Gessner, Lorene Park, Jeffrey Pease, Dorothy Puzio,
Allison Rohrer, Marianne Sadowski, Shuyuan Tang, and Heather Wood.
1
Buchanan v. Rucker, 103 Eng. Rep. 546, 547 (K.B. 1808).
2
Robert Cover, The Folktales of Justice: Tales of Jurisdiction, in NARRATIVE,
VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 173, 176 (Martha Minow et al.
eds., 1992) (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).
2002] GLOBALIZATION OF JURISDICTION 313
. . . We need to imagine these problems differently, and we need to encour-
age people to imagine them differently.
4
INTRODUCTION....................................................................................... 314
I. TEN CHALLENGES............................................................................... 327
A. The Challenge of "Minimum Contacts" in Cyberspace.................. 329
B. The Challenge of E-Commerce...................................................... 330
C. The Challenge of International Taxation........................................ 334
D. The Challenge of Extraterritorial Regulation of Speech................. 335
E. The Challenge of the Dormant Commerce Clause.......................... 340
F. The Challenge of International Copyright...................................... 344
G. The Challenge of Domain Names as Trademarks........................... 345
H. The Challenge of International Computer Crime ............................ 350
I. The Challenge of International and Transnational Human Rights
Enforcement ....................................................................................... 354
J. The Challenge of International Trade............................................. 362
II. TEN RESPONSES................................................................................. 366
A. E Pluribus Cyberspace.................................................................. 367
B. Coase in Cyberspace..................................................................... 373
C. A World of Online Passports ......................................................... 378
D. You Enforce My Laws, I'll Enforce Yours...................................... 382
E. Teaching the World to Sing in Perfect Harmony I: Treaties........... 387
1. The Berne Convention................................................................ 387
2. The Hague Convention............................................................... 389
F. Teaching the World to Sing in Perfect Harmony II: Supranational
Administrative/Adjudicative Bodies..................................................... 390
G. A Return to Lex Mercatoria........................................................... 395
H. The Triumph of NGOs................................................................... 397
I. Challenge? What Challenge?........................................................ 400
J. Common Law Evolution ................................................................ 405
1. Personal Jurisdiction .................................................................. 405
2. Choice of Law............................................................................ 413
III. THE NEED TO CONSIDER THE SOCIAL MEANING OF LEGAL
JURISDICTION ......................................................................................... 415
A. Jurisdiction and the Social Construction of Space ......................... 417
B. Jurisdiction and the Assertion of Community Dominion................. 424
C. Jurisdiction and the Extension of Community Membership............. 427
D. Jurisdiction and the Assertion of Alternative Norms ...................... 429
IV. THE NATION-STATE AND THE SOCIAL/HISTORICAL CONSTRUCTION OF
SPACE, COMMUNITY, AND BORDERS....................................................... 432
A. The Unmooring of Cultures, Peoples, and Places .......................... 433
4
Lawrence Lessig, Foreword to Symposium, Cyberspace and Privacy: A New
Legal Paradigm?, 52 STAN. L. REV. 987, 998-99 (2000).
314 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
B. The Historical Contingency of the Nation-State ............................. 442
C. The Nation-State as an Imagined Community ................................ 449
D. Conceptions of Subnational, Transnational, Supranational, and
Cosmopolitan Identities ...................................................................... 461
1. Subnational Communities........................................................... 462
2. Transnational Communities........................................................ 465
3. Supranational Communities........................................................ 472
4. Cosmopolitan Communities ....................................................... 474
V. A COSMOPOLITAN PLURALIST CONCEPTION OF JURISDICTION............ 478
A. The Cosmopolitan Pluralist Jurisdictional Framework.................. 482
1. A Jurisdictional Framework for State-Sanctioned Courts ............ 484
2. A Jurisdictional Framework for Non-State Communities ........... 488
B. Application of the Framework ....................................................... 498
1. The Minimum Contacts Inquiry.................................................. 499
2. The Yahoo! Case........................................................................ 502
3. International Human Rights........................................................ 511
C. The Convergence of Cyberspace Law and International Law in the
Development of Transnational Common Law Norms........................... 518
CONCLUSION.......................................................................................... 526
INTRODUCTION
In the past decade, the terms "cyberspace" and "globalization" have be-
come buzzwords of a new generation. And it is probably not surprising that
the two have entered the lexicon simultaneously. From its beginning, the
Internet heralded a new world order of interconnection and decentraliza-
tion,5
while the word "globalization"6
conjured for many the specter of in-
creasing transnational and supranational governance as well as the growing
5
See, e.g., DEIRDRE M. CURTIN, POSTNATIONAL DEMOCRACY: THE EUROPEAN UNION
IN SEARCH OF A POLITICAL PHILOSOPHY 4 (1997) ("Just think of how global computer-based
communications cut across territorial borders, creating a new realm of human activity and un-
dermining the feasibility--and legitimacy--of applying laws based on geographic boundaries
to this new sphere.").
6
I use 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, eco-
nomic, and political consequences of liberalization. See generally SASKIA SASSEN,
GLOBALIZATION AND ITS DISCONTENTS (1998) (analyzing globalization and its economic,
political, and cultural effects on the world). 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
that term. 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 peo-
ple, 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. See, e.g., infra
note 7 (citing sources describing various scholars' view of globalization).
2002] GLOBALIZATION OF JURISDICTION 315
mobility of persons and capital across geographical boundaries.7
Thus, both
terms have reflected a perception that territorial borders might no longer be
as significant as they once were.8
On the other hand, nation-state 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 relevance
of nation-state 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 juris-
diction (or multiple jurisdictions).9
Predictably, nation-states pushed in the
opposite direction, passing a slew of laws purporting to regulate almost
every conceivable online activity from gambling10
to chat rooms11
to auc-
7
See, e.g., 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, tech-
nology, information and ideas makes official transfers look increasingly marginal.");
ANTHONY GIDDENS, RUNAWAY WORLD: HOW GLOBALIZATION IS RESHAPING OUR LIVES
24-37 (2000) (pointing to the increased level of trade, finance, and capital flows, and describ-
ing the effects of the weakening hold of older nation-states); Arjun Appadurai, Disjuncture
and Difference in the Global Cultural Economy, in MODERNITY AT LARGE: CULTURAL
DIMENSIONS OF GLOBALIZATION 27, 27-29 (1996) ("[T]oday's world involves interactions of
a new order and intensity. . . . [W]ith the advent of the steamship, the automobile, the air-
plane, the camera, the computer and the telephone, we have entered into an altogether new
condition of neighborliness, even with those most distant from ourselves.").
8
See, e.g., MATHEW HORSMAN & ANDREW MARSHALL, AFTER THE NATION-STATE:
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 WORLD: GEOPOLITICAL PERSPECTIVES ON THE
TWENTY-FIRST CENTURY 3, 10 (George J. Demko & William B. Wood eds., 1994) ("Once
sacrosanct, the concept of a state's sovereignty---the immutability of its international bounda-
ries---is now under serious threat."); Seyla Benhabib, Strange Multiplicities: Democracy and
Identity in a Global Era: Lecture 1, at 33 (on file with author) ("In the era of globalization,
the integrative powers of the nation-state . . . are challenged.").
9
David R. Johnson & David Post, Law and Borders---The Rise of Law in Cyberspace,
48 STAN. L. REV. 1367 (1996); see also, e.g., David Post, Governing Cyberspace, 43 WAYNE
L. REV. 155, 165-71 (1996) (arguing that cyberspace should be governed through decentral-
ized processes whereby network access providers decide what rules to impose and individual
users choose which online communities to join).
10
E.g., Interactive Gambling Act, 2001, pts. 2 & 2A (Austl.) (prohibiting online gam-
bling services to customers in Australia and other designated countries), available at
http://www.noie.gov.au/projects/confidence/Archive/gambling/banact.pdf (last visited Oct.
22, 2002); see also Humphrey ex rel. Minnesota v. Granite Gate Resorts, Inc., 568 N.W.2d
715, 721 (Minn. Ct. App. 1997) (asserting personal jurisdiction over nonresident corporation
and its principal for deceptive trade practices, false advertising, and consumer fraud in con-
nection with an Internet gambling site); Vacco ex rel. People v. World Interactive Gaming
Corp., 714 N.Y.S.2d 844, 851-54 (N.Y. Sup. Ct. 1999) (enforcing state and federal laws to
ban foreign corporation; its Antiguan subsidiary; and their principals, officers, and directors
316 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
tion sites,12
and seeking to enforce territorially based rules regarding trade-
marks,13
contractual relations,14
privacy norms,15
"indecent" content,16
and crime,17
among others.
from operating or offering gambling over the Internet).
11
E.g., 47 U.S.C. § 254(l)(1)(A)(ii) (2001) (requiring schools and libraries to adopt and
implement policies to ensure the safety and security of minors when using chat rooms); NEV.
REV. STAT. § 176A.413 (2001) (restricting ownership and use of online chatrooms by people
previously convicted of cyber-stalking).
12
E.g., IND. CODE §§ 26-2-8-101 to -302 (2001) (containing the Uniform Electronic
Transactions Act, which facilitates the use of online auction sites by giving legal effect to
electronic signatures and contracts); N.C. GEN. STAT. §§ 66-311 to -330 (2001) (same); T.G.I.
Paris, Nov. 20, 2000, http://www.juriscom.net/txt/jurisfr/cti/
tgiparis200001120.pdf (enjoining Yahoo.com from permitting French users' access to Nazi
memorabilia via Yahoo!'s auction sites). For further discussion of this case, see infra text
accompanying notes 77-84.
13
E.g., Anticybersquatting Consumer Protection Act, Pub. L. No. 106-113, 113 Stat.
1501 (1999) (codified as amended in scattered sections of 15, 16, and 28 U.S.C.) (providing
for the "registration and protection of trademarks used in commerce"); Rachel Ross, China
Demands Jurisdiction over Domain Names in Chinese, TORONTO STAR, Nov. 13, 2000,
LEXIS, Tstar File (reporting that China is seeking to ensure that it controls the distribution
and administration of all Chinese-character domain names).
14
E.g., Electronic Transactions Act, 1999 (Austl.) (creating a regulatory regime intended
to support and encourage business and consumer confidence in the use of electronic com-
merce), http://www.law.gov.au/publications/ecommerce/; UNIF. COMPUTER INFO.
TRANSACTIONS ACT, 7 U.L.A. 200 (2002) (providing a model uniform state law to govern
online contracts), available at http://www.law.upenn.edu/bll/ulc/
ucita/cita10st.doc.
15
E.g., Electronic Communications Privacy Act, 18 U.S.C. § 2701(a)(1) (2000) (prohib-
iting unauthorized access to a "facility through which an electronic communication service is
provided"); Data Protection Act, 1998, c. 29 (Eng.) (requiring technical and organizational
measures against unauthorized or unlawful processing of personal data and against accidental
loss of, destruction of, or damage to personal data),
http://www.hmso.gov.uk/acts/acts1998/19980029.htm.
16
See, e.g., 18 U.S.C. § 2252A (2000) (prohibiting the receipt or distribution of sexually
explicit photos of minors by any means including by computer); Reno v. ACLU, 521 U.S.
844, 885 (1997) (striking down, on First Amendment grounds, provisions of the Communica-
tions Decency Act, 47 U.S.C. § 223 (Supp. II 1996), that criminalized certain content trans-
mitted via online communication); ACLU v. Reno, 217 F.3d 162, 181 (3d Cir. 2000) (affirm-
ing, on First Amendment grounds, preliminary injunction preventing the enforcement of the
Child Online Protection Act, 47 U.S.C. § 231 (Supp. IV 1998), which also criminalized cer-
tain content sent via online communication), vacated sub nom. Ashcroft v. ACLU, 122 S. Ct.
1700 (2002); Regina v. Pecciarich, [1995] O.R.3d 748 (Prov. Ct.) (Can.) (holding that the dis-
tribution of child pornography by uploading photos to an electronic bulletin board was in vio-
lation of criminal statutes).
17
E.g., Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (2000) (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
2002] GLOBALIZATION OF JURISDICTION 317
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.18
For example, if a person
posts content online that is legal where it was posted but is illegal in some
place where it is viewed, can that person be subject to suit in the far-off lo-
cation? 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
criminal activity 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 ar-
eas, 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 inter-
national body (and how should such a body be constituted)? And on and
on.
In the meantime, on the globalization front, annual meetings of the
world's industrialized countries have become sites for the expression of un-
certainty and resentment about the effect of international trade and monetary
policy on local labor forces, the environment, and nation-state sovereignty.19
Similar debates recur in the context of international human rights, where,
increasingly, countries are asserting extraterritorial jurisdiction to try those
accused of genocide and crimes against humanity in international or foreign
domestic courts.20
Although all of these issues, questions, and conundrums arise in a vari-
ety of doctrinal areas and may involve a wide range of different legal and
the sender or intended recipient); see also Am. Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d
444, 446, 448 (E.D. Va. 1998) (holding that defendants who harvested e-mail addresses of
AOL members using an extractor program and then used those addresses to send unauthorized
bulk e-mail advertising their pornographic web sites were in violation of federal and state
statutes).
18
See Johnson & Post, supra note 9, at 1371-76 (suggesting that the unique nature of
cyberspace, particularly the absence of any physical location, creates regulatory and jurisdic-
tional problems for governments).
19
See, e.g., After Genoa, THE NATION, Aug. 6, 2001, at 3 (quoting French President
Chirac as saying, "[t]here is no demonstration drawing 100,000, 150,000 people without hav-
ing a valid reason"); 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"); Jerry Useem, There's Something Happening Here, FORTUNE, May 15, 2000, at
234 (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.").
20
See infra Part I.I (describing transnational and international human rights activity).
318 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
policy concerns, they have at least one common element: they all touch on
the idea of legal jurisdiction--the circumstances under which a juridical
body can assert authority to adjudicate or apply its legal norms to a dis-
pute.21
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 jurisdic-
tion 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. Cross-
border interaction obviously is not a new phenomenon, but in an electroni-
cally connected world the effects of any given action may immediately be
felt elsewhere with no relationship to physical geography at all. Thus, al-
though it is not surprising that local communities might feel the need to ap-
ply their norms to extraterritorial activities based simply on the local harms
such activities cause, assertions of jurisdiction on this basis will almost in-
evitably tend toward a system of universal jurisdiction because so many ac-
tivities will have effects far beyond their immediate geographical bounda-
ries. Such a system, for better or worse, would jettison any idea that the
application of legal norms to a party depends in some way on the party's
having consented to be governed by those norms.
Even more important, while courts, policy makers, and scholars are
21
Under international law, the concept of jurisdiction is generally divided into three
categories: (1) jurisdiction to prescribe, i.e., to apply a community's norms to a dispute
(which I will also call choice of law); (2) jurisdiction to adjudicate, i.e., to subject persons or
things to legal process; and (3) jurisdiction to enforce, i.e., to induce or compel compliance
with a determination reached. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF
THE UNITED STATES § 401 (1987). In speaking of the assertion of jurisdiction in this Article,
I refer to the first two categories. It is true that some of the policy concerns underlying juris-
diction and choice of law might be different. For example, the question of adjudicative juris-
diction 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 both adjudicatory jurisdiction and choice of law. The third category, enforce-
ment jurisdiction, is separately addressed in this Article, not so much as a question of jurisdic-
tion, but as the corollary question of recognition and enforcement of judgments. In addition,
this Article focuses primarily on jurisdiction over parties (what in the United States is known
as personal jurisdiction, see generally Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) (de-
scribing the minimum requirements necessary for a court to assert personal jurisdiction)),
rather than jurisdiction over particular subject matter. Subject matter jurisdiction is a separate
inquiry that addresses both which type of court in a given location is permitted to hear a case
and what constitutes a legitimate "case" for adjudicative purposes. Although my analysis here
may have significant implications for subject matter jurisdiction, exploration of those implica-
tions is beyond the scope of this Article.
2002] GLOBALIZATION OF JURISDICTION 319
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. I
aim to take a different approach. I believe the time is ripe 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.
To construct such a model, we first need to remind ourselves that con-
ceptions of legal jurisdiction (by which I mean to include both the jurisdic-
tion to decide a dispute and the determination that a jurisdiction's law will
apply)22
are more than simply ideas about the appropriate boundaries for
state regulation or the efficient allocation of governing authority. Jurisdic-
tion is also the locus for debates about community definition, sovereignty,
and legitimacy. Moreover, the idea of legal jurisdiction both reflects and
reinforces social conceptions of space, distance, and identity. Too often,
however, contemporary frameworks for thinking about jurisdictional author-
ity unreflectively accept the assumption that nation-states defined by fixed
territorial borders are the only relevant jurisdictional entities, without exam-
ining how people actually experience allegiance to community or under-
stand their relationship to geographical distance and territorial borders.
Moreover, by side-stepping these questions of community definition, bor-
ders, and the experience of place, legal thinkers are ignoring a voluminous
literature in anthropology, cultural studies, and the social sciences concern-
ing such issues.23
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.24
Yet if
22
See supra note 21 (discussing international law's tripartite classification scheme for
jurisdiction in international law).
23
Cf. Peter J. Spiro, Globalization, International Law, and the Academy, 32 N.Y.U. J.
INT'L L. & POL. 567, 568 n.2 (2000) (noting that, although the term "postnational" has crept
into other disciplines, international law scholars have been slow to use it, having "only re-
cently caught on to `globalization'").
24
The Peace of Westphalia ended the Thirty Years War. See Treaty of Peace Between
Sweden and the Empire and Treaty of Peace between France and the Empire, Oct. 14, 1648, 1
Consol. T.S. 119, 119-356 [hereinafter Westphalia Treaties] (outlining agreements among al-
most every state in Europe at that time); Leo Gross, The Peace of Westphalia, 1648-1948, in 1
ESSAYS ON INTERNATIONAL LAW AND ORGANIZATION 3, 5 (1984) (explaining that the Thirty
320 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
the ideas of geographical territory and the nation-state are no longer treated
as givens for defining community,25
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,26
and what other imaginings are possible? How do people actually experi-
ence the idea of membership in multiple, overlapping 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," "mem-
ber," "nation," "citizen," "boundary," and "stranger"27
are not natural and
inevitable, but are instead 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 bounda-
ries and community definition and that we acknowledge the historical con-
tingency 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 cosmopoli-
tan. Such an analysis provides a better understanding of the world of ex-
perience 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
Years War began partly because of religious intolerance and that the Peace of Westphalia
"consecrated the principle of toleration"). Westphalia is generally thought to have ushered in
an international legal order based on individual state sovereignty. See infra notes 594-600 and
accompanying text (discussing the terms of the treaties and how the sovereign state became
the primary political unit). The historically contingent nature of the nation-state is discussed
further infra at Part IV.B.
25
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 discourses on `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.").
26
See generally BENEDICT ANDERSON, IMAGINED COMMUNITIES (rev. ed. 1991) (ana-
lyzing the nation-state as an imagined community).
27
See, e.g., Georg Simmel, The Stranger, in THE SOCIOLOGY OF GEORG SIMMEL 402,
402 (Kurt H. Wolff ed., 1950) (arguing that the stranger "is fixed within a particular spatial
group, or within a group whose boundaries are similar to spatial boundaries," but that "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").
2002] GLOBALIZATION OF JURISDICTION 321
body to assert jurisdiction over a controversy.28
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 into
consideration the contested and constantly shifting process by which people
imagine communities and their membership in them. I argue that, just as a
rigidly territorial conception of jurisdiction eventually gave way in the first
part of the twentieth century to the idea of jurisdiction based on contacts
with a sovereign entity, so too a contacts-based approach must now yield to
a conception of jurisdiction based on community definition. In this Article,
I offer one such conception, which I call a cosmopolitan pluralist conception
of jurisdiction.
A cosmopolitan29
approach allows 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 understand-
ings."30
This dynamic understanding of the relationship between the "local"
community and other forms of community affiliation (regional, national,
transnational, international, cosmopolitan) permits us to conceptualize legal
jurisdiction in terms of social interactions that are fluid processes, not mo-
tionless demarcations frozen in time and space. A court in one country
might therefore appropriately assert community dominion over a legal dis-
pute even if the court's territorially based contacts with the dispute are
28
Cf. PAUL W. 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"); Austin Sarat & Susan Silbey, The Pull of the Policy Audi-
ence, 10 L. & POL'Y 97, 97 (1988) (arguing that sociolegal scholars would benefit from resist-
ing 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, 102 COLUM. L.
REV. 1129, 1134 (2002) (book review) (arguing that "the cultural analysis of law is both a vi-
tal field of academic knowledge in its own right and a way of shedding new light on practical
questions concerning legal rules and institutions").
29
By "cosmopolitan," I refer to a multivalent perspective that recognizes the wide vari-
ety of affiliations people feel toward a range of communities, from the most local to the most
global. I therefore distinguish cosmopolitanism from a universalist vision (often associated
with cosmopolitanism), which sees people solely, or primarily, as members of one world
community. See infra text accompanying notes 778-782 (explaining cosmopolitanism's rec-
ognition of the "multi-rootedness" of individuals). Cosmopolitanism, as I use the term, in-
volves an ideal of multiple attachments; it does not necessarily entail the erasure of nonglobal
community affiliations. See, e.g., Bruce Robbins, Introduction Part I: Actually Existing
Cosmopolitanism, in COSMOPOLITICS: THINKING AND FEELING BEYOND THE NATION 1, 3
(Pheng Cheah & Bruce Robbins eds., 1998) ("[I]nstead of an ideal of detachment, actually
existing cosmopolitanism is a reality of (re)attachment, multiple attachment, or attachment at
a distance.").
30
DOREEN MASSEY, SPACE, PLACE, AND GENDER 154 (1994).
322 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
minimal.31
Conversely, a country that has certain "contacts" with a dispute
might nevertheless be unable to establish a tie between a local community
and a distant defendant sufficient to justify asserting its dominion.
A cosmopolitan interrogation of conceptions of community, therefore,
might rein in some assertions of jurisdiction over distant acts while permit-
ting other extraterritorial assertions of jurisdiction that are currently unrec-
ognized. Accordingly, the cosmopolitan pluralist conception of jurisdiction
I propose seeks to capture a middle ground between strict territorialism on
the one hand and a system of complete universal jurisdiction on the other.
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.32
In addition, if nation-states are imagined, historically contingent com-
munities defined by admittedly arbitrary geographical boundaries, and if
those nation-states---because of transnational flows of information, capital,
and people---no longer define unified communities (if they ever did), then
there is no conceptual justification for conceiving of nation-states as pos-
sessing a monopoly on the assertion of jurisdiction. Instead, any compre-
hensive theory of jurisdiction must acknowledge that non-state communities
also assert various claims to jurisdictional authority and articulate alterna-
tive norms that are often incorporated into more "official" legal regimes.
This pluralist33
understanding of jurisdiction helps us to see that law is not
merely the coercive command of a sovereign power, but a language for
31
Of course, even if a court asserted jurisdiction over a dispute, other doctrines, such as
standing or causation, might still lead a court to limit the scope of the available relief.
32
This broader conception of jurisdiction would necessarily affect choice of law as well,
but a more detailed exploration of how these ideas apply to choice of law must await further
elaboration in a future project.
33
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 important, 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. & SOC'Y REV. 869, 870 (1988), even if one or both of those
legal systems is not an "official," state-based system. For further discussions of legal plural-
ism, see CAROL WEISBROD, EMBLEMS OF PLURALISM: CULTURAL DIFFERENCES AND THE
STATE (2002); David Engel, Legal Pluralism in an American Community: Perspectives on a
Civil Trial Court, 1980 AM. B. FOUND. RES. J. 425; Marc Galanter, Justice in Many Rooms:
Courts, Private Ordering, and Indigenous Law, 19 J. LEGAL PLURALISM & UNOFFICIAL L. 1,
28-34 (1981); John Griffiths, What Is Legal Pluralism?, 24 J. LEGAL PLURALISM &
UNOFFICIAL L. 1 (1986).
2002] GLOBALIZATION OF JURISDICTION 323
imagining alternative future worlds. Moreover, various norm-generating
communities (not just the sovereign) are always contesting the shape of
such worlds.
Of course, not all assertions of jurisdiction ultimately possess the coer-
cive force we often associate with law. One of the obvious reasons that na-
tion-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 never have such
coercive force behind them. Crucial to my argument, however, is the dis-
tinction between the assertion of jurisdiction and the ability to enforce a
judgment. The assertion of jurisdiction opens a space for the articulation of
a norm. Then, communities asserting jurisdiction must convince those with
greater coercive power to enforce those norms. For example, when a Span-
ish judge chose to assert jurisdiction over former Chilean dictator Augusto
Pinochet,34
that seizure of jurisdiction had no literal power unless the judge
could rhetorically persuade other countries to recognize the judgment.35
Al-
though the Spanish prosecution ultimately did not proceed,36
the rhetorical
34
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, [kidnappings], torture, forced relocations, assassina-
tions and/or disappearances of numerous persons, including Argentines, Spaniards, Britons,
Americans, Chileans, and other nationalities." Anne Swardson, Pinochet Case Tries Spanish
Legal Establishment, 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 any-
where at any time) and the passive personality principle of jurisdiction (that courts may try
cases if their nationals are victims of crime, regardless of where the crime was committed).
For an English translation of the opinion, see S Audiencia Nacional, Nov. 5, 1998 (No.
173/98), reprinted in THE PINOCHET PAPERS: THE CASE OF AUGUSTO PINOCHET IN SPAIN
AND BRITAIN 95, 107 (Reed Brody & Michael Ratner eds., 2000) [hereinafter PINOCHET
PAPERS]. The Office of the Special Prosecutor had alleged that Spaniards living in Chile were
among those killed under Pinochet's rule. PINOCHET PAPERS, supra, at 106; see also infra
text accompanying notes 186-88 (discussing the Pinochet case).
35
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. Bow St. Metro. Stipendiary Magistrate, 1
A.C. 147 (H.L. 1999) (holding that the International Convention Against Torture, incorpo-
rated into United Kingdom law in 1988, prevented Pinochet from claiming head-of-state im-
munity after 1988, because the universal jurisdiction contemplated by the Convention is in-
consistent with immunity for ex-heads of state).
36
The British government refused to extradite, citing Pinochet's failing health, see For-
eign Secretary Jack Straw, Statement in the House of Commons (Mar. 2, 2000), in PINOCHET
PAPERS, supra note 34, at 481, 482 ("[I]n the light of th[e] medical evidence . . . I conclude[d]
that no purpose would be served by continuing the Spanish extradition request."), and Pino-
chet was returned to Chile where, after domestic proceedings, he was deemed mentally unfit
to stand trial, see Pinochet Unfit for Trial, Chilean Court Rules, N.Y. TIMES, July 10, 2001, at
A2 ("An appeals court ruled that Gen. Augusto Pinochet, 85, is mentally unfit to stand trial
324 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
force of the assertion of jurisdiction has changed the environment for future
international human rights prosecutions.37
In a very real sense then, the as-
sertion of jurisdiction has shaped the future world.
Thus, if a community asserts jurisdiction, it must--if it wants its judg-
ment enforced--convince others of the justice of its ruling and the legiti-
macy of its assertion of community dominion. As a result, jurisdiction be-
comes the rhetorical site for discussions of multiple overlapping and shifting
conceptions of community, and recognition of judgments becomes the ter-
rain on which these alternative conceptions of community vie for persuasive
power and legitimacy.
The cosmopolitan pluralist jurisdictional framework I propose, there-
fore, has two distinct normative components. First, it offers state-
sanctioned courts an approach to questions of jurisdiction that attends to the
social meaning of community definition and the construction of space. This
approach, I argue, is not only more satisfying conceptually, but also identi-
fies and makes explicit the sort of analysis judges are already intuitively be-
ginning to use as they struggle to fashion jurisdictional rules in difficult
cases. Second, my framework provides a way of both recognizing and
evaluating non-state jurisdictional assertions that bind sub-, supra-, or trans-
national communities. Such non-state jurisdictional assertions include a
wide range of entities, from official transnational and international regula-
tory and adjudicative bodies, to non-governmental quasi-legal tribunals, to
private standard-setting or regulatory organizations. More broadly, the idea
of a non-state jurisdictional assertion seeks to capture the development of
transnational common law through the accretion of norms in practice.
My discussion proceeds in five parts. First, I describe some of the chal-
lenges that the rise of cyberspace and globalization pose to a legal system
based on territorially based jurisdiction and fixed borders. The existence of
such challenges suggests that, in a wide variety of legal settings, the rise of
online interaction (and global interconnectedness more broadly) has raised
difficult questions about the extraterritorial assertion of legal norms or adju-
dicatory authority. Second, I summarize several leading theories regarding
how to adapt (if necessary) existing legal doctrine to address these chal-
lenges. These theories include schemes that seek large changes in contem-
porary legal regimes, as well as arguments that cyberspace and globalization
. . . .").
37
See Philippe Sands, Turtles and Torturers: The Transformation of International Law,
33 N.Y.U. J. INT'L 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."); see also infra Parts I.I,
V.B.3.
2002] GLOBALIZATION OF JURISDICTION 325
present no true practical problem at all, and a number of positions in be-
tween. 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 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 at-
tention to the social meaning of legal jurisdiction and community definition.
Then I begin to develop a more complex portrait of jurisdiction and its so-
cial meaning by identifying four different ways in which jurisdiction oper-
ates to constitute communities and define borders. 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, and often contested, and that
they frequently operate at a sub-, supra-, or transnational level. Moreover,
the definition of community emerges as a politically charged (and some-
times hegemonic) social construction. Fifth, drawing on this literature, 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 discuss how
such a conception might operate--and in some cases already is operating--
in both cyberspace and international law practice, revisiting a few of the
challenges discussed in Part I. This discussion suggests ways in which a
cosmopolitan pluralist framework might contribute both to a more satisfying
framework for state-sanctioned courts considering jurisdictional issues and a
more detailed understanding of the wide variety of non-state assertions of
jurisdiction.
One must always be wary of claims that the environment we live in to-
day is radically different from anything that has come before. And, un-
doubtedly, some of the breathless quality of globalization and cyberspace
literature is unwarranted. Indeed, by some measures, the world was just as
"global" and interconnected at the end of the nineteenth century as it is to-
day,38
and we have been communicating over wires across nation-state bor-
ders for over a hundred years. In addition, although nation-states are his-
torically contingent, they are, of course, significantly embedded in
historical, social, and political contexts and continue to exert a powerful
38
See, e.g., Nicholas D. Kristof, At This Rate, We'll Be Global in Another Hundred
Years, N.Y. TIMES, May 23, 1999, at 5 (suggesting that labor, goods, and capital moved
across nation-state borders at least as much in the period from 1860 to 1900 as in the 1990s).
326 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
psychological and symbolic hold on the psyche of many. Thus, the idea of
nation-state sovereignty is not likely to end anytime soon, though the nature
of that sovereignty certainly is shifting.
It is not my intention, however, to prove conclusively that the twin en-
gines of globalization and online interaction are necessarily creating an en-
tirely new crisis that must be "solved" by revisiting the concept of legal ju-
risdiction (though I do not rule out that possibility either). Nor does my
argument depend on any idea that the nation-state is dying or that it will
cease to function as a primary means of defining political community any-
time soon. 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 undoubtedly
have 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 today.39
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 environ-
ment.40
Such periods of challenge and adaptation are also moments of opportu-
nity. Just as the increasing use of legal fictions in an area of law often indi-
cates 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 reexamination. Thus, my aim in this Article is
more limited: to lay out some of the conceptual challenges nation-states
currently face in attempting to maintain distinctive territorially based regu-
latory regimes; to enrich our descriptive understanding of what it means in
social as well as legal terms to assert jurisdiction over a territorially distant
act or actor; to consider whether territorially based legal regimes fit people's
experience of place, borders, and community affiliation; and to begin con-
structing a model that might allow the jurisdictional inquiry to correspond
more accurately to this lived experience.
39
See David G. Post, Against "Against Cyberanarchy," 18 BERKELEY TECH. L.J. (forth-
coming 2002) (manuscript at 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 and property in [any
particular location] will have virtually no geographic structure at all."), available at
http://www.temple.edu/lawschool/dpost/Cyberanarchy.PDF (last visited Dec. 4, 2002).
40
See, e.g., T. Alexander Aleinikoff, Sovereignty Studies in Constitutional Law: A
Comment, 17 CONST. COMMENT. 197, 201-02 (2000) (noting that "there is no reason to as-
sume that the nation-state form will be around forever" and identifying "serious challenges to
nation-state sovereignty from three directions[:] supra-national norms and structures [(includ-
ing international human rights and trade law),] subnational groups . . . demanding (and receiv-
ing) increasing degrees of autonomy, [and] `transnationalism'--the presence within state bor-
ders of communities of non-nationals with significant ties across borders").
2002] GLOBALIZATION OF JURISDICTION 327
Although I offer one possible alternative approach to jurisdiction, it is
less important that others embrace this particular framework than that what-
ever models they develop attend to the social meaning of legal jurisdiction
as an important field of discourse and study. Indeed, those who argue that
we need not change our jurisdictional framework at all will at least be
forced to articulate a coherent understanding of community from which that
framework arises and then test the framework 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.
In the end, this Article is premised on the belief that a more nuanced
appreciation of the social meaning of jurisdiction helps bring together cen-
tral strands of thought within cyberspace law, international law, civil proce-
dure, and the cultural analysis of law. By viewing the problem of jurisdic-
tion from all of these disciplinary perspectives at once, we can see that the
traditional doctrinal boundaries interfere with a fuller understanding of ju-
risdictional rules. Indeed, it seems to me that cyberspace legal theory and
international law increasingly are merging and that the place of intersection
is the domain of jurisdiction and its social meaning. Like civil procedure,
international law has long since moved away from a model of strict territo-
riality, yet its conceptualization of jurisdictional rules is similarly unsuc-
cessful in addressing the broad range of legal challenges and the multitude
of community affiliations at play in today's world. Even the recent U.S.
government efforts to detain and possibly prosecute suspected Al Qaeda ter-
rorists can perhaps more usefully be analyzed through a conception of legal
jurisdiction and community membership that focuses on social meaning.41
Thus, the idea of jurisdiction provides a particularly fruitful cross-
disciplinary site for investigating the effects of globalization on legal sys-
tems.
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. Although the list of challenges is by no means exhaustive,
41
See infra text accompanying notes 930-43 (applying a cosmopolitan pluralist model to
the question of determining the community membership of U.S. citizens accused of aiding Al
Qaeda terrorists).
328 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
my goal is to suggest that in a wide array of doctrinal areas the rise of online
communication and global interconnectedness 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 ways---
such neat divisions.42
Moreover, many of the examples also challenge terri-
torially based assumptions about nation-state sovereignty. Indeed, the tradi-
tional understanding of inviolate national boundaries has been called into
question by the increase of cross-border interaction and the rise of transna-
tional and international administrative and judicial bodies. Thus, the precise
contours of both extraterritorial adjudication and nation-state sovereignty
are in flux.
For those who follow the legal literature on Internet-related develop-
ments, none of these scenarios--except possibly the challenge of interna-
tional human rights--is new. Indeed, many of these issues have been ex-
plored 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 rethink-
ing the concept of jurisdiction, I believe the existence of so many challenges
creates the space for such rethinking to occur. To take one example, dis-
cussed in more detail below,43
it certainly is the case that U.S. courts are ca-
pable of adapting the International Shoe minimum contacts test44
to the
online environment. And perhaps this approach is best. 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 discuss later in the
Article,45
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.
42
Such a jurisdictional system includes both adjudicatory jurisdiction and prescriptive
jurisdiction (or choice of law). In this Article, I refer to both inquiries as issues of jurisdiction
writ large. See supra note 21 (outlining the classification scheme for jurisdiction and discuss-
ing the types of jurisdiction treated in this Article).
43
See infra Part II.J.1 (discussing various efforts to apply the International Shoe mini-
mum contacts test to online interaction).
44
See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (establishing a 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 contacts with
the relevant state "such that maintenance of the suit does not offend `traditional notions of fair
play and substantial justice'").
45
Infra Part II.J.1.
2002] GLOBALIZATION OF JURISDICTION 329
A. The Challenge of "Minimum Contacts" in Cyberspace
The U.S. Supreme Court's International Shoe test for determining
whether an assertion of personal jurisdiction comports with the Due Process
Clause of the U.S. Constitution asks whether the defendant has sufficient
contact with the relevant state "such that . . . maintenance of the suit does
not offend `traditional notions of fair play and substantial justice.'"46
This
"minimum contacts" test is satisfied as long as the "quality and nature of the
activity" of the defendant within the forum 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."47
Although this test is obviously a matter
of U.S. constitutional law and therefore not binding on courts elsewhere, it
provides a useful starting point because the problems of extraterritorial ac-
tivity affect all territorially based jurisdictional systems, even those that de-
fine 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 U.S. Constitu-
tion.48
Nevertheless, although the test's flexibility is its greatest strength,
such flexibility has meant that the minimum contacts analysis does not pro-
vide a clearly defined rule because it relies instead on a highly particular-
ized, fact-specific inquiry. Accordingly, it is difficult to be certain in ad-
vance how many and what sort of contacts will be enough for a state to
exercise personal jurisdiction under the Federal Constitution. The Supreme
Court has variously looked to whether defendants have "purposefully
avail[ed]" themselves of the state's laws,49
whether they could "reasonably
46
Int'l Shoe, 326 U.S. at 316.
47
Id. at 319.
48
The minimum contacts test, of course, establishes only the outer limit for the exercise
of personal jurisdiction. Although states cannot assert jurisdiction beyond that which the Fed-
eral 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 ju-
risdiction over out-of-state defendants beyond that which the Federal Constitution requires.
See, e.g., N.Y. C.P.L.R. 302 (McKinney 2002) (restricting New York's jurisdiction more than
is required by the Federal Constitution); see also FLEMING JAMES, JR. ET AL., CIVIL
PROCEDURE 75 (5th ed. 2001) (noting that "legislatures adopting these [jurisdictional] stat-
utes . . . presumably do not wish to reach the Constitutional limit"). 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. See LARRY L. TEPLY & RALPH
V. WHITTEN, CIVIL PROCEDURE 277 (1994) ("In addition to the issues of constitutional valid-
ity that arise whenever any long-arm statute is applied to the facts of a specific case, there also
exist questions of statutory applicability that must be worked out on a case-by-case basis.").
49
See Hanson v. Denckla, 357 U.S. 235, 253 (1958) ("[I]t is essential in each case that
there be some act by which the defendant purposefully avails itself of the privilege of con-
ducting activities within the forum State, thus invoking the benefits and protections of its
laws.").
330 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
anticipate" that they would be sued there,50
or whether the interests of the
state in adjudicating a dispute outweighed the defendants' concerns about
increased cost, inconvenience, or potential bias.51
In addition, some mem-
bers 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.'"52
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 else-
where? 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?
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 conti-
nent (and indeed a single website may have elements that reside on multiple
50
See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) ("[T]he
foreseeability that is critical to [the exercise of state-court jurisdiction] . . . is that the defen-
dant's conduct and connection with the forum State are such that he should reasonably antici-
pate being haled into court there.").
51
See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985) (allowing a court
to consider establishment of minimum contacts "in light of other factors," such as "`the bur-
den on the defendant'" and "`the forum State's interest in adjudicating the dispute'" (quoting
World-Wide Volkswagen, 444 U.S. at 292)).
52
Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 119-20 (1987) (Brennan, J.,
concurring in part and concurring in the judgment) (emphasis added) (quoting World-Wide
Volkswagen, 444 U.S. at 298). In Asahi, four Justices indicated that simply placing a product
into the stream of commerce would not be sufficient to establish jurisdiction wherever that
product happened to end up. Id. at 112 (O'Connor, J., joined by Rehnquist, C.J., Powell,
Scalia, JJ.). 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. Four other Justices (including Jus-
tice Brennan) disagreed, arguing that simply placing a product into the stream of commerce
was sufficient. Id. at 117 (Brennan, J., concurring in part and concurring in the judgment).
The ninth Justice, Justice Stevens, found that, based on the facts of the case, jurisdiction was
improper under either test and therefore declined to choose between them. Id. at 121-22 (Ste-
vens, J., concurring in part and concurring in the judgment). As a result, neither rationale
achieved a majority, and the Supreme Court has not directly addressed the stream-of-
commerce question since.
2002] GLOBALIZATION OF JURISDICTION 331
servers in multiple locations). For example, 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.53
Some countries may deter-
mine that such "clickstream" agreements are enforceable,54
while others
might view them as not being true bargains because the bargaining power
among the participants might be unequal.55
Or countries might determine
that consumer protection issues implicate public values that cannot simply
be contracted away by parties to a transaction.56
If so, which jurisdiction's
consumer protection law should apply?
The European Union (EU), in an attempt to address these challenges,
adopted a directive57
in early summer 2000 enshrining the "country of ori-
gin" 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.58
Several
53
Cf. Siegelman v. Cunard White Star Ltd., 221 F.2d 189, 204-06 (2d Cir. 1955) (Frank,
J., dissenting) (arguing that a choice-of-law provision in a contract of adhesion should not be
honored). See generally, Albert A. Ehrenzweig, Adhesion Contracts in the Conflict of Laws,
53 COLUM. L. REV. 1072, 1089-90 (1953) (arguing that American courts should justify not
enforcing choice-of-law provisions in adhesion contracts by recognizing that the principle of
party autonomy has no place in conflicts law, rather than by misconstruing contract law).
54
See, e.g., Kilgallen v. Network Solutions Inc., 99 F. Supp. 2d 125, 129 (D. Mass.
2000) (holding that forum selection clauses are enforceable unless proven unreasonable under
the circumstances); Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1010-11 (D.C.
2002) (holding that a consumer received adequate notice of the forum selection clause in an
electronic contract); Rudder v. Microsoft Corp., [1999] 2 C.P.R.4th 474 (Ont. Super. Ct. J.)
(holding that to find the forum selection clause unenforceable would undermine the integrity
of any agreement entered into through the web).
55
See, e.g., Specht v. Netscape Communications Corp., No. 01-7870, 2002 WL
31166784, at *2-4 (2d Cir. Oct. 1, 2002) (ruling that Internet users could not be bound by a
license agreement mandating arbitration when the provision was buried on the second page of
a free software download program); Comb v. PayPal, Inc., No. C-02-1227JF, 2002 WL
2002171, at *6-9 (N.D. Cal. Aug. 30, 2002) (refusing to enforce an arbitration clause in an
electronic contract on grounds of procedural and substantive unconscionability).
56
See, e.g., Williams v. Am. Online, Inc., No. 00-0962, 2001 WL 135825, at *3 (Mass.
Super. Ct. Feb. 8, 2001) (refusing to enforce forum selection clause contained in America
Online's Terms of Service agreement in part because "[p]ublic policy suggests that Massachu-
setts consumers who individually have damages of only a few hundred dollars should not have
to pursue AOL in Virginia").
57
A directive by the European Union is binding legislation on the Member States as to
the result(s) achieved, but allows national authorities the choice of various methods of imple-
mentation. See TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10, 1997, art.
249, O.J. (C 340) 2 (1997) [hereinafter EC TREATY].
58
See Council Directive 2000/31, art. 22, 2000 O.J. (L 178) 1, 4 ("[I]nformation society
services should . . . be subject to the law of the Member State in which the service provider is
established.").
332 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
months later, however, the European Commission59
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 e-
commerce disputes, absent contractual provisions to the contrary.60
Since
then, under heavy pressure from business interests, the EU has backed off
the idea of enacting Rome II.61
These flip-flops demonstrate how conten-
tious the question of jurisdiction over e-commerce activities has become.
C. The Challenge of International Taxation
Historically, taxation regimes have been based on geography and have
depended on the traditional nation-state structure.62
Thus, the issue 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 noted: "[T]he basic assumption underlying economic governance in the
59
The European Commission is the EU's functional equivalent to the executive branch
in the United States. See EC TREATY, supra note 57, at arts. 211-19 (establishing the Euro-
pean Commission and describing its powers and duties).
60
See Communication from the Commission to the Council and the European Parlia-
ment on E-commerce and Financial Services, COM(01)66 final at 8 (holding that, in the ab-
sence of a choice-of-law provision in a consumer contract, the contract is governed by the law
of the consumer's "habitual residence").
61
See John Duckers, Regulation Tide Begins to Recede, BIRMINGHAM POST, Feb. 15,
2002, at 24, 2002 WL 13710809 (reporting that the European Commission has "shelved" its
Rome II negotiations, indicating that "`business is making its voice heard in Europe's corri-
dors of power'" (quoting Andrew Sparrow, Partner, Lee Crowder Solicitors)); Paul Meller,
Europe Panel Is Rethinking How It Views E-Commerce, N.Y. TIMES, June 27, 2001, at W1
(noting the EC's reversal on the country-of-destination approach).
62
See Michael J. Graetz, Taxing International Income: Inadequate Principles, Outdated
Concepts, and Unsatisfactory Policies, 54 TAX L. REV. 261, 277-82 (2001) (discussing the
history of, and justifications for, the focus in tax policy on the prerogatives and interests of
nation-states). In fact, most modern countries have based their tax policies on traditional no-
tions of a nation-state's sovereign authority over its subjects. See Stephen G. Utz, Tax Har-
monization and Coordination in Europe and America, 9 CONN. J. INT'L L. 767, 769 (1994)
[hereinafter Utz, Tax Harmonization] ("Until recently, discussions of tax policy usually as-
sumed that a taxing sovereign could . . . [tax] almost exclusively . . . the economic conduct of
its own citizens."). Early tax policy analysts assumed that the geographically fixed nation-
state possessed inherent taxing authority, reflecting the unrivalled view that "nations were
natural units and that within their bounds national governments were sovereign for all pur-
poses." STEPHEN G. UTZ, TAX POLICY: AN INTRODUCTION AND SURVEY OF THE PRINCIPAL
DEBATES 56 (1993). Under this vision, nation-states "claim full taxing authority over people,
property, and transactions `within' their territory." Id. at 195.
2002] GLOBALIZATION OF JURISDICTION 333
modern era is that, regardless of how international the world economy, any
transaction can be located precisely in two dimensional geographic space."63
He goes on to state bluntly, however, that "[g]eography does not map on
cyberspace."64
For example, imagine a company that provides online 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 bilateral income tax agreements allow taxation if
a business maintains a "permanent establishment" (PE) in a particular juris-
diction, but otherwise does not allow taxation of "business profits" derived
from that jurisdiction.65
In an e-commerce world, the need to have such a
permanent establishment is dramatically reduced. 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 electronic signals 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 Co-
operation and Development (OECD), which administers the model income
tax convention that forms the basis of most bilateral agreements, recently
attempted to clarify the definition of what constitutes a "permanent estab-
lishment" (PE):
[T]he 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 enter-
prise 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 com-
puter equipment, such as a server, is located may in certain circumstances con-
stitute 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 ac-
tivity of the enterprise.
66
63
Stephen J. Kobrin, Taxing Internet Transactions, 21 U. PA. J. INT'L ECON. L. 666, 671
(2000).
64
Id.
65
See, e.g., MODEL TAX CONVENTION ON INCOME AND ON CAPITAL art. 7, § 1 (Org. for
Econ. Cooperation & Dev. Comm. on Fiscal Affairs 1997) (stating that an enterprise of one
state doing business in another shall not be taxed in the second state unless it has a permanent
establishment there).
66
Press Release, Technical Advisory Group, Organization for Economic Cooperation
and Development, OECD Progresses Towards Achieving an International Consensus on the
Tax Treatment of E-Commerce (Dec. 2, 2001), at http://www.oecd.org/
EN/document/0,,EN-document-590-17-no-12-6697-590,00.html; see also OECD Committee
on Fiscal Affairs, Clarification on the Application of the Permanent Establishment Definition
334 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
While this clarification may sound reasonable, it poses a major problem for
developing countries that rely on tax revenue from foreign investment be-
cause corporations can now more easily avoid local taxation by maintaining
only an "e-presence" in a given country.67
Turning from income taxes to consumption taxes, while local govern-
ments can impose a tax on residents' purchases from distant vendors, they
will find it difficult to impose an obligation on those vendors to collect the
tax absent a physical presence in the locality.68
In addition, increasing e-
commerce may lead to the gradual elimination of intermediaries, who have
been crucial for identifying taxpayers.69
Finally, although so-called "low
value" shipments across borders historically have been granted de minimis
relief from customs duties and taxes, the rise of e-commerce may increase
the number of direct orders from foreign suppliers, leading either to substan-
tial loss of tax revenue or higher customs collection costs.70
Thus, as with
income taxes, there are fears that e-commerce will result in an erosion of the
consumption tax base, which might disproportionately affect the economies
in E-Commerce: Changes to the Commentary on the Model Tax Convention on Article 5 para.
3., Organization for Economic Co-operation and Development 3 (Dec. 22, 2000), at
http://www.oecd.org/daf/fa/e_com/ec_1_PE_Eng.pdf (providing the language used in the
press release). Similarly, language on taxation in the Restatement of Foreign Relations Law
requires that corporations have a physical presence within a jurisdiction before a state can tax
its income. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES § 412 (1987) (noting that a state may tax corporations if they have a physical pres-
ence within the state or conduct business within the state).
67
Even within the United States, the issue of physical nexus is controversial. For exam-
ple, California's State Board of Equalization recently issued an opinion asserting that Bor-
ders.com can be required to collect California sales tax despite the fact that Borders.com has
no property or employees in California. See Borders Online, Inc., SC OHA 97-638364 56270,
at 4 (Cal. Bd. Equalization Sept. 26, 2001) (mem.),
http://www.boe.ca.gov/legal/pdf/borders.pdf) (holding that Borders.com's in-state authorized
representatives for receiving product returns created a "substantial nexus" between Bor-
ders.com and the state). The board 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. Id. at 5. 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.
68
See Richard Jones & Subhajit Basu, Taxation of Electronic Commerce: A Developing
Problem, 16 INT'L REV. L. COMPUTERS & TECH. 35, 38 (2002) ("Whereas states can impose a
tax on residents' purchases from out-of-state vendors, they cannot impose an obligation on
those vendors to collect the tax unless the vendor has a substantial presence, or nexus, in the
state.").
69
See id. at 37 (arguing that e-commerce "leads to the gradual elimination of intermedi-
aries, such as wholesalers or local retailers, who in the past have been critical for identifying
taxpayers, especially private consumers").
70
See id. at 37-38 (explaining the challenge that tax and customs authorities face from
an increase in "low value" shipments since the amount of tax due on such shipments is lower
than the cost of collection).
2002] GLOBALIZATION OF JURISDICTION 335
of developing countries.71
Stephen J. Kobrin, Director of the Wharton School's Institute of Man-
agement and International Studies, recently offered an example of the diffi-
culties.72
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?73
Kobrin argues that in discussions of Internet taxation issues such as this
one, four assumptions are generally at work. First, taxation should be eco-
nomically neutral--that is, it should not influence the location or form of
economic activity. Second, transactions that are either doubly or triply
taxed, or not taxed at all, should be avoided. Third, there should be an equi-
table distribution of tax revenue. Fourth, fiscal sovereignty based on geo-
graphically defined nation-states should be maintained.74
As the question of
permanent establishment indicates, however, it will be difficult to satisfy all
four of these principles simultaneously. Indeed, given the nongeographic
nature of digital transactions, "it may be impossible to resolve `jurisdic-
tional' issues, distribute revenue, or even collect sufficient revenues to sus-
tain governmental activities while maintaining the practice or principle of
mutually exclusive jurisdiction---political and economic control exercised
through control over geography."75
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.76
D. The Challenge of Extraterritorial Regulation of Speech
Cyberspace creates the possibility (and perhaps even the likelihood)
that content posted online by a person in one physical location will violate
71
See id. at 41 (discussing a study indicating that, although developing countries account
for only sixteen percent of world imports of digitized goods, their share of tariff revenue loss
for such goods is almost double that of industrialized countries).
72
Kobrin, supra note 63, at 670-71.
73
See id. (posing a hypothetical that presents the same problem).
74
Id. at 672.
75
Id.
76
See id. ("In the digital age, effective, efficient, and just tax systems may require sub-
stantive international cooperation."); see also Jones & Basu, supra note 68, at 49 (arguing that
the OECD is "dominated by the U.S. and the developed world," resulting in "solutions de-
vised for and beneficial to the developed world"). See generally Utz, Tax Harmonization,
supra note 62, at 767-72 (describing the difficulties of forging international tax policy).
336 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
the law in some other physical location. In such circumstances there is an
inevitable problem of extraterritoriality. Will the person who posts the con-
tent 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
depend in part on whether the community of readers asserts the jurisdic-
tional 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 access in France of Yahoo! auc-
tion sites that sell Nazi memorabilia or other items that are sympathetic to
Nazism or constitute holocaust denial.77
Undisputedly, selling such mer-
chandise in France would violate French law,78
and Yahoo.fr, Yahoo!'s
French subsidiary, complied with requests that access to such sites be
blocked.79
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 non-French 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.80
According to Yahoo!, in order to
comply with the injunction it would need to remove the pages from its serv-
ers 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 countries.81
Most important, Yahoo! argued that
77
T.G.I. Paris, May 22, 2000, http://www.juriscom.net/txt/jurisfr/cti/
tgiparis2000522.htm. An example of the type of auction page at issue can be found at
http://www.legalis.net/jnet/illustration/yahoo_auctions.htm (last visited Oct. 22, 2002).
78
See CODE PÉNAL [C. PÉN.] art. R. 645-1 (Fr.) (prohibiting the public display of Nazi
memorabilia except for the purposes of an historical film, show, or exhibit).
79
See T.G.I. Paris, Nov. 20, 2000 (noting that Yahoo! France had posted warnings on its
site that through Yahoo! U.S., the user could access revisionist sites, the visiting of which is
prohibited and punishable by French law), http://www.juriscom.net/txt/
jurisfr/cti/tgiparis20001120.htm.
80
Id.
81
Id.
2002] GLOBALIZATION OF JURISDICTION 337
such extraterritorial censoring of American web content would run afoul of
the First Amendment of the U.S. Constitution.82
Thus, Yahoo! and others83
contended that the French assertion of jurisdiction was an impermissible at-
tempt by France to impose global rules for Internet expression.84
Interestingly, an Australian case decided the previous year had adopted
this same logic in refusing to enjoin material posted on the Internet by a per-
son in the United States that was allegedly defamatory under Australian
law.85
According to the court, "Once published on the Internet material can
be received anywhere, and it does not lie within the competence of the pub-
lisher to restrict the reach of the publication."86
The court went on to ex-
plain:
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 re-
lating to defamation on every other state, territory and country of the world.
Yet 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 coexten-
sive 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, Tazhakistan, or Mongolia, the
defendant has an unfettered right to publish the material. To make an order in-
terfering with such a right would exceed the proper limits of the use of the in-
junctive power of this court.
87
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 scope.88
82
Id.
83
See, e.g., Carl S. Kaplan, Experts See Online Speech Case as Bellwether, N.Y. TIMES,
Jan. 5, 2001, at http://www.nytimes.com/2001/01/05/technology/05CYBERLAW.
html?pagewanted=print (quoting the warning of Barry Steinhardt, associate director of the
American Civil Liberties Union, that if "litigants and governments in other countries . . . go
after American service providers . . . we could easily wind up with a lowest common denomi-
nator standard for protected speech on the Net").
84
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." Id.
85
See Macquarie Bank Ltd. v. Berg (N.S.W.S. Ct. June 2, 1999) (refusing to grant an
order restraining the publication of allegedly defamatory material on the Internet because such
an order would impose the defamation laws of New South Wales on other countries),
http://www.austlii.edu.au/au/cases/nsw/supreme_ct.
86
Id. at para. 12.
87
Id. at para. 14.
88
But see Gutnick v. Dow Jones & Co., (V.S. Ct. Aug. 28, 2001) (asserting jurisdiction
over an American publisher for publishing on its website an article allegedly defaming an
Australian citizen), http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/
338 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
The French judge took a different tack, however, and decided to inves-
tigate 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.89
The panel, though partially divided,90
ultimately concluded that for ap-
proximately seventy percent of the French users of Yahoo.com, identifying
the location of the user would be feasible.91
Armed with that information,
the court then reissued its injunction.92
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.93
Rather than filter out French users, Yahoo! decided to remove the auc-
tion sites from its servers altogether. Although Yahoo! claimed that its de-
cision was "voluntary" and unrelated to the French court ruling,94
civil liber-
vic/VSC/2001/305.html?query=title+%28+%22gutnick%22+%29.
89
See T.G.I. Paris, Aug. 11, 2000 (ordering the formation of a panel of technical experts
to determine whether Yahoo could identify and filter out French users from the sites found to
violate French law), http://www.legalis.net/cgi-iddn/french/
affiche-jnet.cgi?droite=decisions/responsabilite/ord_tgi-paris_110800.htm.
90
One of the three members, Vinton Cerf, objected to the part of the experts' report rec-
ommending that Yahoo! be forced to ask users their location upon accessing the site. See
T.G.I. Paris, Nov. 20, 2000 (providing Cerf's objections), http://
www.juriscom.net/txt/jurisfr/cti/tgiparis20001120.htm. According to Cerf, such a require-
ment 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. Id. In addi-
tion, 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 court's jurisdiction as to those
individuals is unclear. 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 Expert's Apology." Open Letter from Ben Laurie, An Expert's Apology (Nov. 21,
2000), at http://www.apache-ssl.org/apology.html. 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 court's order), the expert report did not
necessarily reflect his policy opinion on the question. Id. Laurie also argued that any geo-
graphical filtering would be "inaccurate, ineffective and trivially avoid[able]" and would im-
pose 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.
91
See T.G.I. Paris, Nov. 6, 2000 (setting forth the report of court-appointed experts),
http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001106-rp.htm.
92
See T.G.I. Paris, Nov. 20, 2000, supra note 90 (ordering Yahoo! to comply with the
court's order of May 22, 2000).
93
See, e.g., French Auschwitz Group Sues Yahoo!, REUTERS, Jan. 23, 2001, at http://
news.zdnet.co.uk/story/0,,t269-s2083893,00.html (reporting that the group seeks "a symbolic
one franc of damages").
94
See Press Release, Yahoo!, Yahoo! Enhances Commerce Sites for Higher Quality
Online Experience (Jan. 2, 2001), at http://docs.yahoo.com/docs/pr/release675.html (announc-
ing new product guidelines for its auction sites that prohibit "items that are associated with
2002] GLOBALIZATION OF JURISDICTION 339
tarians viewed Yahoo!'s capitulation as evidence that the French court had
successfully engaged in extraterritorial censorship.95
Indeed, on its face, the
French ruling looked like the classic 1808 case in which Lord Ellenborough
ruled that a default judgment against a British citizen issued in Tobago
should not be enforced and asked rhetorically, "Can the island of Tobago
pass a law to bind the rights of the whole world?"96
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 that Italian
courts can assert jurisdiction over foreign-based websites and shut them
down if they do not abide by Italian law.97
The court determined, as in Ya-
hoo!, that Italian courts have jurisdiction either when an act or omission has
actually been committed on Italian territory or when simply the effects or
consequences of an act are felt in Italy.98
Likewise, Germany's second-
highest court ruled that an Australian website owner---whose website ques-
tioning the Holocaust is illegal in Germany but not in Australia---could be
jailed for violating German speech laws.99
Germany's interior minister sub-
sequently announced that he was examining "the possibilities of using
[German] civil laws to sue the creators of right-wing web sites based in the
groups which promote or glorify hatred and violence"). But cf. Troy Wolverton & Jeff Pel-
line, Yahoo to Charge Auction Fees, Ban Hate Materials, CNET NEWS.COM, Jan. 2, 2001, at
http://news.cnet.com/news/0-1007-200-4352889.html (noting that Yahoo!'s new policy re-
garding hate-related materials followed action by the French court).
95
See, e.g., Center for Democracy and Technology, A Briefing on Public Policy Issues
Affecting Civil Liberties Online, 6 CDT POLICY POST (Nov. 21, 2000), at http://
www.cdt.org/publications/pp_6.20.shtml (discussing the dangerous precedent set for countries
seeking to restrict free expression outside their borders); see also Jen Muehlbauer, Borderless
Net, RIP?, INDUSTRY STANDARD, Nov. 21, 2000, at http://
thestandard.com/article/display/0,1151,20331,00.html (criticizing the French court's ruling on
the ground that it imposed international censorship on the Internet).
96
Buchanan v. Rucker, 103 Eng. Rep. 546, 547 (K.B. 1808).
97
Cass., 27 dec. 2000, translated at http://www.cdt.org/speech/international/
001227italiandecision.pdf; see also Italy: Foreign 'Net Sites Can Be Closed, UPI, Jan. 10,
2001, LEXIS, UPI File (reporting decision and noting that "[i]t was not immediately clear,
however, how [an order to shut down a foreign web site] could be implemented or enforced").
The case was brought by a Jewish man who said he was defamed by a number of websites that
claimed he was holding his two daughters captive in the city of Genoa and was preventing
them from practicing Judaism. Cass., 27 dec. 2000, supra. In fact, the man had been granted
sole custody of the girls after his wife had taken them to Israel and married an ultra-orthodox
rabbi. Id.
98
Cass., 27 dec. 2000, supra note 97.
99
See Australian Faces Trial for Holocaust Denial, REUTERS, Dec. 14, 2000, at http://
www.zdnet.com.au/newstech/news/story/0,2000025345,20107617,00.htm("[T]he Federal Su-
preme 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.").
340 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
USA that have an effect in Germany."100
Even in Australia, a second ruling
has been issued in a separate online defamation case that contradicts the ear-
lier one.101
Most recently, the Canadian Human Rights Tribunal ordered Ernst
Zündel, a former Canadian resident now living in the United States, to re-
move anti-Semitic hate speech from his California-based Internet site.102
The Tribunal's order recognized that the Tribunal might have difficulty en-
forcing its ruling, but determined that there would be "a significant sym-
bolic value in the public denunciation" of Zündel's actions and a "potential
educative and ultimately larger preventative benefit that can be achieved by
open discussion of the principles enunciated in [its] decision."103
For its part, Yahoo! continued its legal battle and recently won a judg-
ment in U.S. District Court in California declaring that the French court rul-
ing cannot be recognized or enforced in the United States largely because
the French judgment ran counter to the First Amendment.104
An appeal of
that judgment is still pending.105
No matter how the American case is ulti-
mately resolved, though, the French court's willingness to assert its norms
over cyberspace content originating elsewhere demonstrates some of the
difficulties that result from the ease with which online content crosses terri-
torial borders.
E. The Challenge of the Dormant Commerce Clause
In the United States, courts have begun to invoke many of the same ex-
100
Ned Stafford, German Official Seeks Help to Shut U.S.-Based Hate Sites,
NEWSBYTES, Aug. 6, 2001, LEXIS, Newsbytes File.
101
Gutnick v. Dow Jones & Co. (V.S. Ct. 2001), http://www.austlii.edu.au/cgi-bin/
disp.pl/au/cases/vic/VSC/2001/305.html?query=title+%28+%22gutnick%22+%29.
102
Citron v. Zündel (Canadian Human Rights Trib. Jan. 18, 2002), 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 (describing a ruling that held "an Internet site that promotes hate against any group contra-
venes the Canadian Human Rights Act" because "hate messaging has no place in Canadian
Society").
103
Citron v. Zündel, para. 57 (Canadian Human Rights Trib. Jan. 18, 2002),
http://www.chrt-tcdp.gc.ca/decisions/docs/citron-e.htm; see also Cameron, supra note 102
(quoting a Commission spokesperson as acknowledging that "[w]e have no experience with
enforcing compliance in cases involving the Internet").
104
Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d
1181, 1192 (N.D. Cal. 2001).
105
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 Part I.E.
2002] GLOBALIZATION OF JURISDICTION 341
traterritoriality concerns raised by Yahoo! to strike down state regulation of
Internet activity under the so-called "dormant" Commerce Clause.106
Gen-
erally speaking, the dormant Commerce Clause limits state regulations
based on their effects outside the state.107
Thus, as in the jurisdictional in-
quiry, the dormant Commerce Clause analysis is premised upon the impor-
tance of fixed geographical boundaries and the presumed danger of extrater-
ritorial regulation. 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, American Library Association v.
Pataki,108
a federal district court enjoined enforcement of a New York stat-
ute that prohibited the intentional use of the Internet "to initiate or engage"
in certain pornographic communications deemed to be "harmful to mi-
nors."109
The court reasoned that, because materials posted to the web any-
where 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.110
Moreover, according to the court,
because states regulate pornographic communications differently, "a single
actor might be subject to haphazard, uncoordinated, and even outright in-
consistent regulation by states that the actor never intended to reach and
106
The Commerce Clause grants Congress the power "To regulate Commerce with For-
eign nations, and among the several States." U.S. CONST. art. I, § 8, cl. 3. Implicit in this af-
firmative 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 inter-
state commerce. This idea is usually traced to Justice Johnson's concurrence in Gibbons v.
Ogden, where he stated:
And since the power to [regulate commerce] necessarily implies the power to deter-
mine 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.
22 U.S. (9 Wheat.) 1, 227 (1824) (Johnson, J., concurring).
107
The Supreme Court has formulated the dormant Commerce Clause analysis as fol-
lows:
Where the statute regulates evenhandedly to effectuate a legitimate local public in-
terest, and its effects on interstate commerce are only incidental, it will be upheld
unless the burden imposed on such commerce is clearly excessive in relation to the
putative local benefits. If a legitimate local purpose is found, then the question be-
comes one of degree. And the extent of the burden that will be tolerated will of
course depend on the nature of the local interest involved, and on whether it could be
promoted as well with a lesser impact on interstate activities.
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (citation omitted).
108
969 F. Supp. 160 (S.D.N.Y. 1997).
109
Id. at 183-84 (enjoining enforcement of N.Y. PENAL LAW §§ 235.20(6), 235.21(3)
(McKinney 2000)).
110
Id. at 177.
342 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
possibly was unaware were being accessed."111
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 have used
the dormant Commerce Clause to issue preliminary injunctions against the
enforcement of a New Mexico statute criminalizing dissemination by com-
puter of materials harmful to minors,112
a Virginia law regulating porno-
graphic communications,113
and a Michigan statute criminalizing the use of
computers to distribute sexually explicit materials to minors.114
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 American Library, "nearly every state regulation of Internet com-
munications will have the extraterritorial consequences the court be-
moaned," including "state antigambling laws, computer crime laws, various
consumer protection laws, libel laws, licensing laws, and many more."115
A
court in California, for example, invalidated, under the dormant Commerce
Clause, a state law regulating "junk" e-mail.116
Likewise, the First Circuit
ruled that a Massachusetts cigar advertising law, if applied to Internet adver-
tising, would violate the dormant Commerce Clause,117
and a federal district
111
Id. at 168-69.
112
See ACLU v. Johnson, 194 F.3d 1149, 1160-63 (10th Cir. 1999) (deciding that the
statute, N.M. STAT. ANN. § 30-37-3.2(A) (Michie 1998), violates the Commerce Clause be-
cause it regulates conduct that occurs wholly outside of New Mexico, burdens interstate and
foreign commerce unreasonably, and subjects "interstate use of the Internet to inconsistent
state regulation").
113
See PSINet, Inc. v. Chapman, 108 F. Supp. 2d 611, 626 (W.D. Va. 2000) ("[Virginia
Code] § 18.2-391 constitutes an undue burden on interstate commerce because it attempts to
regulate commercial conduct wholly outside of Virginia's borders.").
114
See Cyberspace Communications, Inc. v. Engler, 55 F. Supp. 2d 737, 751 (E.D.
Mich. 1999) ("The Act is, as a direct regulation of interstate commerce, a per se violation of
the Commerce Clause.").
115
Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant Commerce
Clause, 110 YALE L.J. 785, 787 (2001).
116
See Ferguson v. Friendfinders, Inc., 115 Cal. Rptr. 2d 258, 267-68 (Cal. App. Dep't
Super. Ct. 2002) (affirming the lower court's ruling sustaining demurrer); see also Evan Han-
sen, Court Kills Key Parts of Bulk Email Law, CNET NEWS.COM, June 9, 2000, at
http://news.com.com/2100-1023-241711.html?legacy=chet (discussing Ferguson v. Friend-
finders); Carl S. Kaplan, In Spam Case, Another Defeat for State Internet Laws, N.Y. TIMES ,
Mar. 24, 2000, at http://www.nytimes.com/library/tech/00/03/
cyber/cyberlaw/24law.html (discussing the "string of decisions questioning the ability of
states to enforce their own Internet laws"). But see State v. Heckel, 24 P.3d 404 (Wash. 2001)
(upholding, in the face of a dormant Commerce Clause challenge, a Washington state law that
prohibits both the transmission of commercial electronic mail from an Internet domain with-
out permission of a third party who owns the domain and the transmission of e-mail that is
false or misleading).
117
Consol. Cigar Corp. v. Reilly, 218 F.3d 30, 56-57 (1st Cir. 2000) (holding that requir-
2002] GLOBALIZATION OF JURISDICTION 343
court in Illinois similarly enjoined enforcement of a state statute prohibiting
advertising of certain controlled substances, in part because the pharmaceu-
tical company challenging the ban would not be able to comply with the
statute unless it canceled all Internet advertising.118
Scholars are divided on whether the emerging dormant Commerce
Clause jurisprudence in cyberspace is justified,119
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
Digital Commerce Act,120
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 Inter-
net,"121
thus seemingly preempting all state regulation of online activity.122
ing warnings on interstate advertisement is unconstitutional), aff'd in pt., rev'd in pt. on other
grounds sub nom., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001); see also Carl S.
Kaplan, Ruling Favors Tobacco Companies, N.Y. TIMES ON THE WEB, Nov. 17, 2000, at
http://www.nytimes.com/2000/11/17/technology/17CYBERLAW.html (discussing a ruling in
the Southern District of New York "that a New York law effectively banning the direct sale of
cigarettes to New Yorkers via the Internet is likely to be unconstitutional"); cf. Santa Fe Natu-
ral Tobacco Co. v. Spitzer, No. 00 Civ. 7274 (LAP), 2001 U.S. Dist. LEXIS 7548, at *97
(S.D.N.Y. June 8, 2001) (permanently enjoining, on dormant Commerce Clause grounds, en-
forcement of a state law that effectively prohibits Internet and mail order sales of cigarettes).
118
See Knoll Pharm. Co. v. Sherman, 57 F. Supp. 2d 615, 623 (N.D. Ill. 1999)
("[O]verwhelming evidence has been submitted showing that the practical effect of a ban
against advertising Meridia in Illinois would . . . force the removal of advertising in nationally
distributed publications and broadcasts . . . . There is no technological or commercially realis-
tic means to black Illinois out of a national advertising market.").
119
Compare Dan L. Burk, Federalism in Cyberspace, 28 CONN. L. REV. 1095, 1123-34
(1996) (arguing that the dormant Commerce Clause is an appropriate and "significant check to
individual states' regulation of Internet activity"), Bruce P. Keller, The Game's the Same:
Why Gambling in Cyberspace Violates Federal Law, 108 YALE L.J. 1569, 1593-96 (1999)
(arguing that dormant Commerce Clause problems can be avoided by focusing on federal
regulation and prosecution), Glenn Harlan Reynolds, Virtual Reality and "Virtual Welters":
A Note on the Commerce Clause Implications of Regulating Cyberporn, 82 VA. L. REV. 535,
540 (1996) (pointing out that state regulation of the Internet on obscenity grounds probably
violates the dormant Commerce Clause), and David Post, Gambling on Internet Laws, AM.
LAW., Sept. 1998, at 95 (arguing that state attempts to regulate the Internet likely violate the
Constitution), with Goldsmith & Sykes, supra note 115, at 827 (highlighting the errors made
when courts have applied the dormant Commerce Clause to the Internet).
120
H.R. 2421, 107th Cong. (2001).
121
Id.
122
For a discussion of the bill, see Margaret Kane, Digital Commerce Sparks Tax
Tango, CNET NEWS.COM, July 20, 2001, at http://news.cnet.com/news/0-1007-200-
6614719.html.
344 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
F. The Challenge of International Copyright
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 inter-
national 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 copy-
right laws would apply.123
Such a network of national codes may have sufficed in an era when the
distribution or performance of works occurred within easily identifiable and
discrete geographic boundaries. However, "instant and simultaneous
worldwide access to copyrighted works over digital networks . . . fundamen-
tally challenges territorial notions in copyright"124
and complicates tradi-
tional choice-of-law doctrine because it is often difficult to determine where
particular acts have occurred in order to determine which copyright law to
apply.125
Thus, as one commentator has asked: "[I]f 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 be-
hind?"126
These changes, though not literally concerned with the scope of
adjudicatory jurisdiction, are arguably necessary precisely because copy-
right laws, like laws concerning jurisdiction, rely upon geographical
boundaries among nation-states that may not be maintainable in the new
online context.127
For example, let us assume that a publisher produces a web page that
resides on a server in Holland.128
The web page includes photos taken by
123
See Paul Edward Geller, International Intellectual Property, Conflicts of Laws and
Internet Remedies, 22 EUROP. INTELL. PROP. REV. 125, 126-27 (2000) (describing reliance of
copyright treaties on national treatment and reliance of classic conflicts rule for intellectual
property disputes on the "place of infringing acts").
124
Andreas P. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on Global
Networks, 19 MICH. J. INT'L L. 799, 800-01 (1998) (footnote omitted).
125
See Geller, supra note 123, at 126 ("The points where acts of infringement begin and
end become indistinguishable as transactions cross multiple borders simultaneously in global,
interactive networks." (footnote omitted)).
126
Jane C. Ginsburg, The Cyberian Captivity of Copyright: Territoriality and Authors'
Rights in a Networked World, 15 SANTA CLARA COMPUTER & HIGH TECH. L.J. 347, 348-49
(1999).
127
See, e.g., Geller, supra note 123, at 126-27 (describing the "ambiguity of territorial-
ity" with regard to the application of intellectual property laws).
128
This example is drawn from Ginsburg, supra note 126, at 349-50, and is based on a
controversy in France involving "the unauthorized scanning and uploading to a cybercafe's
website of Le Grand Secret, a banned biography of the late French President [François] Mit-
2002] GLOBALIZATION OF JURISDICTION 345
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 per-
mission. Assume further that the photographers now claim that the pub-
lisher has violated U.S. copyright law on a theory similar to the one used by
the French court in Yahoo!: 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 impor-
tant considerations under many copyright regimes. Second, which coun-
try's copyright law applies? If we use Holland's, where the website resides,
we will encourage web publishers seeking to evade onerous copyright re-
gimes 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 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 store in New York
City called "Berman's," I will not, as a general matter, be able to prevent a
person in Australia from opening a store that is also called "Berman's,"
even if I have previously established a trademark in my name. The idea is
that customers would be unlikely to confuse the two stores because they are
in markets that are spatially distinct.129
In the online world such clear spa-
tial boundaries are collapsed because, as the domain name system is cur-
rently organized, there can be only one bermans.com domain name, and it
can only point to one of the two stores.
terand," id. at 349 n.3.
129
See Hanover Milling Co. v. Metcalf, 240 U.S. 403, 415 (1915) ("But where two par-
ties independently are employing the same mark upon goods of the same class, but in separate
markets wholly remote the one from the other, the question of prior appropriation is legally
insignificant . . . [except in cases of bad faith]."), quoted in United Drug Co. v. Theodore Rec-
tanus Co., 248 U.S. 90, 101 (1918). This is not an absolute rule, of course, because "famous
or well-known marks may well leap oceans and rivers, cross national borders, and span lan-
guage barriers to achieve international recognition." Dan L. Burk, Trademark Doctrines for
Global Electronic Commerce, 49 S.C. L. REV. 695, 720 (1998); see, e.g., Vaudable v. Mont-
marte, Inc., 193 N.Y.S.2d 332 (N.Y. Sup. Ct. 1959) (enjoining the use by a restaurant in New
York of the name and décor of Maxim's Restaurant in Paris). Nevertheless, the likelihood-of-
confusion standard historically has tended to imbed a geographical limitation.
346 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
In the early to mid-1990s, as corporations and entrepreneurs began to
understand the potential value of a recognizable domain name, pressure in-
creased to create trademark rights in domain names. For example, one early
Internet domain name dispute involved the Panavision Corporation, which
holds a trademark in the name "Panavision."130
In 1995, Panavision at-
tempted to establish a website with the domain name panavision.com, but
found that the name had already been registered to Dennis Toeppen.131
When contacted by Panavision, Toeppen offered to relinquish the name in
exchange for $13,000.132
Panavision sued, arguing that Toeppen's registra-
tion violated trademark law despite the fact that Toeppen's Panavision site
(which included photographs of the city of Pana, Illinois) could hardly be
confused with the Panavision Corporation.133
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 distin-
guish Panavision's goods and services on the Internet.'"134
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 the Berman's
store in Australia for violating my trademark, I might now have a cause of
action concerning the bermans.com domain name if the Australian store
registered the name ahead of me.
The U.S. Congress subsequently enacted legislation confirming this ex-
pansion of trademark law. Under pressure from trademark holders, Con-
gress first passed the Federal Trademark Dilution Act135
and then the Anti-
cybersquatting Consumer Protection Act (ACPA), which provides an
explicit federal remedy to combat so-called "cybersquatting."136
According
to the congressional reports, the ACPA 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.137
130
Panavision Int'l v. Toeppen, 141 F.3d 1316, 1318-19 (9th Cir. 1998).
131
Id. at 1319.
132
Id.
133
Id.
134
Id. at 1326 (quoting Panavision Int'l v. Toeppen, 945 F. Supp. 1296, 1304 (C.D. Cal.
1996)).
135
Federal Trademark Dilution Act of 1995, Pub. L. No. 104-98, 109 Stat. 985 (codified
at 15 U.S.C. §§ 1125, 1127 (Supp. 1996)).
136
Anticybersquatting Consumer Protection Act of 1999, Pub. L. No. 106-113, § 3001,
113 Stat. 545, 548-49 (1999); see H.R. REP. NO. 106-479, at 115 (1999) (detailing the Act).
137
See H.R. REP. NO. 106-412, at 5-7 (1999) (noting that "[s]ometimes these pirates put
pornographic materials on theses sights [sic] in an effort to increase the likelihood of collect-
ing ransom by damaging the integrity of a [trade]mark"); S. REP. NO. 106-140, at 4-7 (1999)
(highlighting testimony regarding attempts to ransom domain names to the highest bidder).
2002] GLOBALIZATION OF JURISDICTION 347
Nevertheless, even if one believes that reining in "cybersquatters" is a
laudable goal (and even that goal has been debated),138
there can be 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 to operate extraterritorially. Potentially, even those who are le-
gitimately 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.139
In addition, as Graeme Dinwoodie has noted, this unmooring of trademarks
from territory creates the possibility that individual countries will interpret
their trademark laws expansively, thereby reducing trademark rights "to
their most destructive form": the mutual ability to block (or at least inter-
138
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 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. This assumption is then employed to justify
permitting the owner of the trademark in a brand name to control use of that brand name in a
URL. Id. at 1256-57. Such a legal determination, however, does not just assume a static
model for the digital environment where customer habits, browser configurations, and search
engines will continue as they are, but also enforces such a static model backed by the power of
law. Id. at 1257. As Benkler points out:
The private stakes for those corporations who have invested in building brand recog-
nition and plan to recoup their investments by exercising some price discipline using
the value of their brand name as a search-cost saving device for consumers are obvi-
ous. 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. 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., Manchester Airport PLC v. Club Club Ltd., Case No. D2000-0638, WIPO Arbitra-
tion and Mediation Center Administrative Panel Decision (Aug. 22, 2000), at
http://www.arbiter.wipo.int/domains/decisions/html/2000/
d2000-0638.html (stating that respondent attempted to sell the domain name to the complain-
ant "for an amount well in excess of the registration fees," but noting that "selling a domain
name is not per se prohibited by the ICANN [Internet Corporation for Assigned Names and
Numbers] Policy (nor is it illegal or even, in a capitalist system, ethically reprehensible)").
139
In response to this problem, the World Intellectual Property Organization adopted, in
the fall of 2001, a Joint Recommendation calling for a definition of "use" for purposes of
trademark law that would protect legitimate users of marks who disclaimed any intent to en-
gage in commerce in a particular country. Joint Recommendation Concerning Provisions on
the Protection of Marks, and Other Industrial Property Rights in Signs on the Internet art. 2
(2001), http://www.wipo.org/about-ip/en/
index.html?wipo_content_frame=/about-ip/en/trademarks.html.
348 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
fere with) the online use of marks recognized in other countries.140
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.141
Thus, with the increasing scope of trademark law
in cyberspace, the next question becomes: how shall any domain name de-
cision be enforced? The ACPA attempts to address this problem by provid-
ing in rem jurisdiction over the domain name itself wherever that name is
registered.142
Thus, for example, if people register domain names online via
a website owned by Network Solutions, a domain name registrar143
corpora-
tion 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,144
however, and it remains to
140
See Graeme B. Dinwoodie, Private International Aspects of the Protection of Trade-
marks 27, Paper Presented at the WIPO Forum on Private International Law and Intellectual
Property (Jan. 30-31, 2001) (WIPO Doc. No. WIPO/PIL/01/4 2001) (noting that "[t]his `mu-
tual blocking' capacity is neither efficient nor a positive contribution to the globalization of
markets or the development of ecommerce"), http://
www.wipo.org/pil-forum/en/documents/doc/pil_01_4.doc. Catherine T. Struve and R. Polk
Wagner have also raised the specter that realspace sovereigns may increasingly attempt to
segment the domain system itself, to insure that any trademark action involving domain names
will have the requisite territorial nexus to support the assertion of jurisdiction. Catherine T.
Struve & R. Polk Wagner, Realspace Sovereigns in Cyberspace: The Case of Domain Names,
17 BERKELEY TECH. L.J. 989, 1031-1034 (2002). As Struve and Wagner point out, such terri-
torially based segmentation of the domain name system would result in "the dramatic reduc-
tion in utility provided by the system itself." Id. at 1031.
141
See, e.g., Mecklermedia Corp. v. D.C. Cong. G.m.b.H., 1998 Ch. 40, 53 (Eng.) (not-
ing that the cause of action for using trademarked language is different in Germany and Eng-
land and, thus, simultaneous proceedings could continue).
142
See 15 U.S.C. § 1125(d) (2000) ("In an in rem action . . . a domain name shall be
deemed to have its situs in the judicial district in which . . . the domain name registrar . . . is
located.").
143
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 Num-
bers to grant registration of domain names. DAVID BENDER, COMPUTER LAW § 3D.05[3], at
3D-104.
144
Compare FleetBoston Fin. Corp. v. Fleetbostonfinancial.com, 138 F. Supp. 2d 121,
135 (D. Mass. 2001) (finding that in rem provisions of ACPA violate due process when do-
main name registration paper is subsequently transferred to a district other than the district
where the domain name registry, registrar, or other domain name authority 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 further contact, does not constitute
sufficient minimum contacts for the purposes of in personam jurisdiction), and Am. Online,
Inc. v. Chih-Hsien Huang, 106 F. Supp. 2d 848, 855-59 (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 Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 224-25 (4th Cir. 2002) (ruling that because the lawsuit concerns the
property itself, assertion of in rem jurisdiction comports with due process), Caesars World,
2002] GLOBALIZATION OF JURISDICTION 349
be seen whether courts will find that such assertions of jurisdiction comport
with constitutional due process guarantees.145
In the meantime, domain name trademark disputes are increasingly re-
solved through online arbitration under the auspices of the Internet Corpora-
tion for Assigned Names and Numbers, a not-for-profit corporation that
administers the domain name system,146
and the World Intellectual Property
Organization, a United Nations administrative body. While the ability of
these organizations to govern domain names transcends geographical bor-
ders, 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 may be necessary.147
Thus, even this alternative to the problem of ter-
ritorially based Internet governance faces substantial challenges.
Inc. v. Caesars-Palace.com, 112 F. Supp. 2d 502, 504 (E.D. Va. 2000) (finding sufficient con-
tacts for purposes of in rem jurisdiction because the domain name was registered in the state),
and Lucent Techs., Inc. v. Lucentsucks.com, 95 F. Supp. 2d 528, 531 n.5 (E.D. Va. 2000)
(finding that registration is sufficient minimum contact for in personam jurisdiction). For a
more detailed discussion of the ACPA in rem provisions, see Struve & Wagner, supra note
140, at 1006-19.
145
The resolution of this question probably rests ultimately on whether courts interpret
the U.S. Supreme Court's decision in Shaffer v. Heitner, 433 U.S. 186 (1977), to have ex-
tended 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., Cae-
sars World, 112 F. Supp. 2d at 504 ("[U]nder 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."). Even some members
of the U.S. Supreme Court have taken that approach. See Burnham v. Superior Court, 495
U.S. 604, 620-21 (1990) (Scalia, J., joined by Rehnquist, C.J., Kennedy, J.) (limiting Shaffer
to quasi in rem actions unaccompanied by in-state service of process). 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 in Shaffer itself. See, e.g., Shaffer, 433 U.S. at 212 (stating that,
henceforth, "all assertions of state-court jurisdiction must be evaluated according to the stan-
dards set forth in International Shoe and its progeny." (emphasis added) (footnote omitted));
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 mod-
ern 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 call-
ing an action "in rem" and limiting recovery to the res itself.
146
For a brief description of ICANN and its history, see generally Developments in the
Law---The Law of Cyberspace, 112 HARV. L. REV. 1574, 1657-80 (1999). For a more de-
tailed discussion of many issues surrounding the development of ICANN and the idea of
internet governance, see generally MILTON L. MUELLER, RULING THE ROOT: INTERNET
GOVERNANCE AND THE TAMING OF CYBERSPACE (2002).
147
For example, a recent study of ICANN and WIPO's Uniform Dispute Resolution Pol-
icy 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, 27 BROOK. J. INT'L L. 903, 903-13 (2002) [hereinafter Geist, Fair.com?]
350 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
H. The Challenge of International Computer Crime148
In the past few years, the increasing problem of computer crime has
captured public attention. In the year 2000 alone, several incidents illumi-
nated 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.149
A few months later, the
"I Love You" virus infected forty-five million computers worldwide.150
(noting that the system is biased in favor of trademark holders); Steven Bonisteel, Law Expert
Charges Bias in Domain-Dispute Arbitrations, NEWSBYTES, Aug. 20, 2001 (on file with au-
thor) ("[T]rademark holders who launch complaints under [WIPO's Uniform Dispute Resolu-
tion Policy] win in an overwhelming majority of cases.") see also MICHAEL GEIST,
FUNDAMENTALLY FAIR.COM? AN UPDATE ON BIAS ALLEGATIONS AND THE ICANN UDRP
8 (2002), at http://aix1.uottawa.ca/~geist/
fairupdate.pdf (updating study, responding to methodological criticisms, and stating that bias
continues). For criticisms of ICANN from the perspective of democratic legitimacy and ad-
ministrative transparency, see, for example, A. Michael Froomkin, Wrong Turn in Cyber-
space, Using ICANN to Route Around the APA and the Constitution, 50 DUKE L.J. 17, 18
(2000) [hereinafter Froomkin, Wrong Turn in Cyberspace]; Jonathan Weinberg, ICANN and
the Problem of Legitimacy, 50 DUKE L.J. 187, 188 (2000); David Post, Governing Cyber-
space, or "Where Is James Madison when We Need Him?," ICANN Watch, at
http://www.icannwatch.org/archive/governing_cyberspace.htm (June 6, 1999); Centre for
Global Studies, Enhancing Legitimacy in the Internet Corporation for Assigning Names and
Numbers: Accountable and Transparent Governance Structures, Markle Foundation, at
http://www.markle.org/News/ICANN_Final_Sept18.pdf (Sept. 18, 2002). In addition, see
generally www.ICANNWatch.org (last visited Nov. 20, 2002). For similar criticisms of
WIPO, see, for example, A. Michael Froomkin, Of Governments and Governance, 14
BERKELEY TECH. L.J. 617, 618 (1999):
As an international body all too willing to take up the reins 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.
148
This subsection is largely derived from Patricia L. Bellia, Chasing Bits Across Bor-
ders, 2001 U. CHI. LEGAL F. 35 (2001). For another recent article, which addresses similar
issues in the context of international computer fraud, see generally Ellen S. Podgor, Interna-
tional Computer Fraud: A Paradigm for Limiting National Jurisdiction, 35 U.C. DAVIS L.
REV. 267 (2002).
149
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?, ZDNET NEWS, Feb. 9, 2000, at http://www.zdnet.com/zdnn/stories/news/
0,4586,2435899,00.html (listing targeted sites). For a description of the attacks, see Internet
Denial of Service Attacks and the Federal Response: Joint Hearing Before the Subcomm. on
Crime of the House Comm. on the Judiciary and the Subcomm. on Criminal Justice Oversight
of the S. Comm. on the Judiciary, 106th Cong. 35-37 (2000) (statement of Michael A. Vatis,
Director, National Infrastructure Protection Center, Federal Bureau of Investigation); Cyber-
crime: Hearing Before a Subcomm. of the S. Comm. on Appropriations, 106th Cong. 23-37
(2000) (statement of Louis J. Freeh, Director, Federal Bureau of Investigation).
150
See Electronic Communications Privacy Act of 2000, Digital Privacy Act of 2000 and
Notice of Electronic Monitoring Act: Hearing on H.R. 5018, H.R. 4987, and H.R. 4908 Be-
2002] GLOBALIZATION OF JURISDICTION 351
And in November, FBI investigators conducted a controversial sting opera-
tion in which they lured two Russians suspected of participating in a hack-
ing ring to the United States, captured their passwords, and then used the
passwords to connect to a Russian computer network and download in-
criminating data from the hackers' Russian servers, all before obtaining a
search warrant.151
Moreover, criminal conduct involving computers extends far beyond
crimes perpetrated against computer networks, such as hacking. For exam-
ple, computer networks can be used to facilitate online forms of traditional
crimes, such as gambling,152
child pornography,153
fraud,154
and software
piracy.155
In addition, a computer may simply contain evidence relevant to
fore the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. 16-
27 (2000) (statement of Kevin DiGregory, Deputy Assistant Attorney General, Criminal Divi-
sion, Department of Justice) (describing the reach and cost of the "I Love You" virus); Paul
Festa & Joe Wilcox, Experts Estimate Damages in the Billions for Bug, CNET NEWS.COM,
May 5, 2000, at http://news.cnet.com/news/0-1003-200-1814907.html (describing the cost of
the "I Love You" virus as exceeding several billion dollars).
151
See Mike Carter, E-sting Nets 2 Russian Hackers; FBI Alleges Pair Stole Credit Info,
SEATTLE TIMES, Apr. 23, 2001, at A1 (outlining how the two hackers were caught); Robert
Lemos, FBI "Hack" Raises Global Security Concerns, CNET NEWS.COM, May 1, 2001, at
http://news.cnet.com/news/0-1003-202-5785729.html (discussing the concerns that some se-
curity experts and lawyers have over the techniques used by the FBI); Robert Lemos, FBI
Nabs Russian Hackers, ZDNET NEWS, Apr. 23, 2001, at
http://www.zdnet.com/zdnnn/stories/news/0,4586,508199,00.html (discussing the indictment
of the two Russians). 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, 2001 WL
1024026, at *5 (W.D. Wash. May 23, 2001).
152
See generally NAT'L GAMBLING IMPACT STUDY COMM'N, FINAL REPORT ch. 5
(1999) (describing the emergence, rapid growth, and various forms of Internet gambling and
recommending methods of federal regulation), available at http://
govinfo.library.unt.edu/ngisc/reports/5.pdf.
153
See PRESIDENT'S WORKING GROUP ON UNLAWFUL CONDUCT ON THE INTERNET,
THE ELECTRONIC FRONTIER: THE CHALLENGE OF UNLAWFUL CONDUCT INVOLVING THE
USE OF THE INTERNET app. C (2000) (addressing online child pornography, child luring, and
related offenses and discussing federal laws and initiatives to protect children), available at
http://www.cybercrime.gov/append.pdf.
154
See Robin Fields, Fake Emulex Release Was Sent via E-Mail, L.A. TIMES, Aug. 31,
2000, at C3 (describing how e-mail and the Internet were used to distribute a false press re-
lease); John F.X. Peloso & Ben A. Indek, Overview of SEC's Response to the Internet in Se-
curities Markets, N.Y. L.J., Oct. 19, 2000, at 3 (explaining various SEC actions taken in re-
sponse to the rise in cases of Internet securities fraud).
155
PRESIDENT'S WORKING GROUP ON UNLAWFUL CONDUCT ON THE INTERNET, supra
note 153, 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 of 1998, Pub. L. No. 105-
304, 112 Stat. 2860 (codified as amended in scattered sections of 17 U.S.C.). Sklyarov was
accused of violating the Act based on his activities in Russia, where they were legal. See Rus-
352 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
a criminal investigation.156
Certainly, with the heightened interest of gov-
ernments worldwide in combating terrorism, tracking crime through elec-
tronic means is increasingly a priority.
In these circumstances, nation-state borders may be inconsequential
both to the commission of the crime and the location of the relevant evi-
dence. The denial of service attacks on U.S. websites originated in Can-
ada.157
The "I Love You" virus originated in the Philippines.158
Gam-
bling,159
child pornography,160
or "spam"161
operations targeting users in
one jurisdiction will often locate their servers elsewhere. And, as online ac-
tivities become ubiquitous, even cases that do not otherwise have a com-
puter 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 fortu-
ity 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
sian Police Say Programmer Arrested in U.S. Broke No Russian Laws, SiliconValley.com
(July 27, 2001) (on file with author). For more on the Sklyarov controversy, see, for example,
Lawrence Lessig, Jail Time in the Digital Age, N.Y. TIMES, July 30, 2001, at A17 (comment-
ing on Skylarov's plight).
156
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. For examples of the use of this classification scheme, see PRESIDENT'S WORKING
GROUP ON UNLAWFUL CONDUCT ON THE INTERNET, supra note 153, at 7-9; Bellia, supra
note 148, at 37 n.11; Scott Charney & Kent Alexander, Computer Crime, 45 EMORY L.J. 931,
934 (1996); Marc D. Goodman, Why the Police Don't Care About Computer Crime, 10
HARV. J.L. & TECH. 465, 468-69 (1997); Michael A. Sussmann, The Critical Challenges from
International High-Tech and Computer-Related Crime at the Millennium, 9 DUKE J. COMP. &
INT'L L. 451, 455 (1999).
157
See Canada Broadens Its Case Against Suspected Hacker, N.Y TIMES, Aug 4, 2000,
at C5 (highlighting a Canadian youth's denial-of-service attacks, which paralyzed several U.S.
websites, including Yahoo!, Amazon, and eBay).
158
See ISP Tracks "Love" Bug Through Caller ID, CNET NEWS.COM, May 15, 2000, at
http://news.cnet.com/news/0-1003-200-1877238.html (stating that virus apparently originated
in Manila); "Love" Bug Release May Have Been Accidental, CNET NEWS.COM, May 11,
2000, at http://news.cnet.com/news/0-1003-200-1855997.html (reporting that a Filipino com-
puter student may have accidentally released the virus).
159
See, e.g., People v. World Interactive Gaming Corp., 714 N.Y.S.2d 844, 847 (N.Y.
Sup. Ct. 1999) (involving an Antiguan corporation that installed computer servers in Antigua
"to allow users [from] around the world to gamble from their home computers").
160
See, e.g., Crackdown on Net Child Porn, CNET NEWS.COM, Sept. 2, 1998, at
http://news.cnet.com/news/0-1005-200-332841.html (describing coordinated, world-wide
raids on pedophiles operating on the Internet, resulting in the arrest of over one hundred peo-
ple in twelve countries).
161
See, e.g., Declan McCullagh, Spam Oozes Past Border Patrol, WIRED.COM, Feb. 23,
2001, at http://www.wired.com/news/print/0,1294,41860,00.html (reporting that an increasing
amount of unsolicited commercial e-mail sent to the U.S. is originating from overseas sites
and flowing through non-U.S. servers).
2002] GLOBALIZATION OF JURISDICTION 353
Japanese citizens might subscribe to America Online and have their electronic
mail stored on AOL's Virginia servers.
162
Or, a criminal might deliberately store computer files in a jurisdiction that
affords greater privacy protection.163
Moreover, as the FBI sting operation involving the Russian hackers
demonstrates, the jurisdictional challenges of international computer crime
include not only the enforcement of criminal laws across borders, but also
the investigation of the crimes themselves. As one commentator has ob-
served:
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 cross-border search itself as extraterritorial conduct with harmful local
effects.
164
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.165
Thus, as computers are
increasingly involved in international criminal activities, we can expect con-
tinued debate about whether, and under what circumstances, cross-border
searches, international investigations, and extraterritorial enforcement ac-
tions are permissible or legitimate.166
162
Bellia, supra note 148, at 56 (citation omitted).
163
See Jonathan I. Edelstein, Note, Anonymity and International Law Enforcement in
Cyberspace, 7 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 231, 265-66 (1996) (discussing
the possibility of countries' using anonymous remailers and computer secrecy laws to create
database havens for criminals).
164
Bellia, supra note 148, at 42.
165
See id. at 42-43 ("The target state may believe that principles of territorial sover-
eignty likewise permit it to `regulate' this harmful extraterritorial conduct---for example, by
invoking certain privacy or property protections that prohibit the searching officials' conduct
or by objecting to such conduct through diplomatic channels.").
166
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, 8 (1998) (ruling that a money laundering charge could
only be prosecuted in the district where the alleged acts of laundering took place, not in the
district where the crimes generating the money allegedly occurred). Needless to say, deter-
mining the precise geographic location of criminal acts that occur in cyberspace may pose dif-
ficulties under the Cabrales standard.
354 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
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 among them.167
In-
deed, until the twentieth century, the state was the primary entity in interna-
tional law, and the need to protect its sovereignty was paramount. As one
commentator has observed, "[t]here were relatively few rules of interna-
tional law---and certainly no rules protecting fundamental human rights or
the environment which could be invoked to override immunity or to claim
an interest in activities beyond a state's territory."168
For example, in 1876,
when an American citizen asked a New York state court to assert jurisdic-
tion over Buenaventura Baez, the former President of the Dominican Re-
public, 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.169
According to the court, Baez was immune from juris-
diction because such immunity was "essential to preserve the peace and
harmony of nations."170
The world of international law looks very different today. As Peter J.
Sprio notes, "[w]e appear to be in the midst of a sweeping away of founda-
tions that had been in place if not for a millennium then at least for several
centuries."171
Increasingly, international law is no longer simply the pre-
serve of nation-states, effective over a narrow range of issues. Rather, we
have seen the creation of regional and global institutions, treaties, and other
international obligations that have established limits on sovereign auton-
omy.172
Moreover, non-state actors, including non-governmental organiza-
167
See BARRY E. CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW 2 (2d. ed.
1995) (describing how international law was defined in James Brierly's classic treatise, The
Law of Nations, as "the body of rules and principles of action which are binding upon civi-
lized states in their relations with one another").
168
Sands, supra note 37, at 529.
169
Hatch v. Baez, 14 N.Y. Sup. Ct. 596, 599-600 (N.Y. Gen. Term 1876).
170
Id. at 600.
171
Spiro, supra note 23, at 567.
172
See, e.g., Michael Byers, The Law and Politics of the Pinochet Case, 10 DUKE J.
COMP. & INT'L L. 415, 441 (2000) (arguing that "[t]he 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 that, when global institutions
and rules exist, individuals and groups have the space to "challenge 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:
Regional and global institutions were created [in the twentieth century]. Treaties and
other international obligations were adopted across a broad range of subject areas,
2002] GLOBALIZATION OF JURISDICTION 355
tions (NGOs), multinational corporations, worldwide religious movements,
subnational governmental and administrative bodies, and regional and inter-
national institutions, are playing a larger role.173
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."174
These developments challenge international law's traditional jurisdic-
tional framework, which, though different from the U.S. minimum contacts
approach, is similarly problematic because it is so focused on the nation-
state, its boundaries, and its prerogatives. Indeed, the two most common
traditional bases for jurisdiction in international law are territory (jurisdic-
tion over activities within a state's borders)175
and nationality (jurisdiction
over a state's citizens).176
Thus, jurisdictional debates historically have
been limited to whether territorial sovereignty should be impinged upon
even to admit a principle of jurisdiction based on nationality.177
A focus
establishing limits on sovereign freedoms. New standards were adopted seeking to
protect and promote fundamental human rights and, more recently, conserve the en-
vironment. Gradually, new actors emerged with an international voice, of which
corporations and NGOs were to become the most active. Inherent in these develop-
ments---but not explicitly conceived---were the seeds for change . . . .
Sands, supra note 37, at 530.
173
See Harold Hongju Koh, The Globalization of Freedom, 26 YALE J. INT'L 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: Democratization at the In-
ternational Level, U.N. GAOR, 51st Sess., Agenda Item 41, at para. 73, 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 `international' scene").
174
Sands, supra note 37, at 530; see also Kanishka Jayasuriya, Globalization, Law, and
the Transformation of Sovereignty: The Emergence of Global Regulatory Governance, 6 IND.
J. GLOBAL LEGAL STUD. 425, 425 (1999) (arguing that "globalization is transforming tradi-
tional conceptions and constructions of sovereignty," and that "the conventional image of a
sovereignty associated with exclusive territorial jurisdiction . . . is no longer theoretically or
empirically serviceable in the face of the internationalization of economic and social activ-
ity"); Phillip R. Trimble, Globalization, International Institutions, and the Erosion of National
Sovereignty and Democracy, 95 MICH. L. REV. 1944, 1946 (1997) ("[T]he new conditions
loosely associated under the platitudinous rubric of `globalism' pose new and quite visible
challenges to national sovereignty.").
175
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §
402(1) (1987). For a discussion of territorial jurisdiction, see BARRY E. CARTER & PHILLIP R.
TRIMBLE, INTERNATIONAL LAW 728-33 (2d ed. 1995).
176
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §
402(2) (1987). For a discussion of jurisdiction based on nationality, see CARTER & TRIMBLE,
supra note 175, at 728, 733-34.
177
For example, in discussing the territoriality principle, Lord Macmillan stated: "It is
356 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
solely on territoriality or nationality, however, is unduly narrow and fails to
respond adequately to increasing cross-border interaction, flexible commu-
nity affiliations, and awareness of the transnational effects of seemingly lo-
cal activities. For example, even though the territorial basis for jurisdiction
permits some extraterritorial application by including within its scope "con-
duct outside [a state's] territory that has or is intended to have substantial
effect within its territory,"178
such a definition is likely to be overinclusive,
because so much activity can be deemed to have cross-border effects.179
Two other less often invoked international law bases of jurisdiction, the pro-
tective principle180
and the passive personality principle,181
contemplate ex-
an essential attribute of the sovereignty of this realm, as it is of all sovereign independent
states, that it should possess jurisdiction over all persons and things within its territorial limits,
and in all causes, civil and criminal, arising within these limits." Compania Naviera Vascon-
gada v. Steamship Christina, 1938 App. Cas. 485 (appeal taken from Eng.); see also Gross,
supra note 24, at 3 (articulating the notion of a Westphalian legal order based on "states exer-
cising untrammeled sovereignty over certain territories and subordinated to no earthly author-
ity"); Harold G. Maier, Jurisdictional Rules in Customary International Law, in
EXTRATERRITORIAL JURISDICTION IN THEORY AND PRACTICE 64, 67 (Karl M. Meessen ed.,
1996) (asserting that the territoriality principle "is the most universally recognised [principle]
because control over defined territory is not only a legal prerequisite for statehood but is also
essential to permit a state's government to be responsible to other nations for internal compli-
ance with its external community commitments").
178
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §
402(1)(c) (1987); see also, e.g., United States v. Aluminum Co. of Am., 148 F.2d 416, 443
(2d Cir. 1945) ("[A]ny state may impose liabilities, even upon persons not within its alle-
giance, for conduct outside its borders that has consequences within its borders which the state
reprehends; and these liabilities other states will ordinarily recognize.").
179
For example, the application of U.S. antitrust and securities laws to acts committed
abroad has generated resistance from foreign courts as well as the passage of "blocking stat-
utes" aimed at limiting the extraterritorial reach of U.S. laws. See CARTER & TRIMBLE, supra
note 175, at 738 (stating that foreign countries have responded to the controversial practice of
applying U.S. laws extraterritorially by passing statutes that make it "illegal to comply with
extraterritorial judicial orders and forbidding enforcement of judgments based on extraterrito-
rial application of law"). Although the Restatement of Foreign Relations invokes a reason-
ableness standard to limit jurisdictional assertions, see RESTATEMENT (THIRD) OF THE
FOREIGN RELATIONS LAW OF THE UNITED STATES § 403(1) (1987) ("[A] state may not exer-
cise jurisdiction to prescribe law with respect to a person or activity having connections with
another state when the exercise of such jurisdiction is unreasonable."), such a standard is
unlikely to be effective absent a more detailed theoretical framework for determining when a
jurisdictional assertion is reasonable. For more discussion of the use of an "effects test" for
determining jurisdiction in cases involving online interaction, see infra text accompanying
notes 432-443.
180
See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES § 402(3) (1987) ("[A] state has jurisdiction to prescribe law with respect to . . . cer-
tain conduct outside its territory by persons not its nationals that is directed against the secu-
rity of the state or against a limited class of other state interests."). Under the protective prin-
ciple, a state may assert jurisdiction over conduct occurring outside its territory and not
performed by its nationals if such conduct threatens the security of the state or certain other
classes of state functions, such as counterfeiting the state's seal or currency, espionage, or per-
2002] GLOBALIZATION OF JURISDICTION 357
traterritorial jurisdiction, but they do so based solely on the prerogative of a
state to exercise jurisdiction for reasons of national security or in response
to harm to one of its citizens abroad. Accordingly, none of the established
bases of jurisdiction under international law sufficiently comes to grips with
the increasingly non-territorial nature of international activity.
The most striking challenge to international law's traditional jurisdic-
tional scheme has been the increasing willingness of states to apply princi-
ples of universal jurisdiction.182
As Mary Robinson, former United Nations
High Commissioner on Human Rights, recently explained, "universal juris-
diction is based on the notion that certain crimes are so harmful to interna-
tional interests that states are entitled---and even obliged---to bring pro-
ceedings against the perpetrator, regardless of the location of the crime or
the nationality of the perpetrator or the victim."183
While the principle of
universal jurisdiction has long existed, it is rapidly becoming a significant
challenge to the assumed prerogatives of national sovereignty.184
Similarly, we are seeing an erosion of longstanding sovereignty princi-
ples that gave heads of state immunity from prosecution before foreign or
international tribunals.185
For example, on October 16, 1998, a magistrate
in London issued a provisional warrant for the arrest of Senator Augusto Pi-
nochet 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.186
Although Pinochet claimed immunity, the British
jury before consular officials. See id. § 402 cmt. f (identifying section 402(3) as the protective
principle and discussing its application).
181
See id. § 402 cmt. g (explaining that under the passive personality principle, a state
may exercise jurisdiction whenever one of its nationals is harmed, even if the harm occurred
completely beyond the state's borders). This principle is not widely recognized beyond cir-
cumstances involving international terrorism or other organized attacks on a state's nationals
because of their nationality. Id.
182
Universal jurisdiction derives from the idea that some crimes are "recognized by the
community of nations" to be "of universal concern" and therefore can be prosecuted any-
where. Id. at §404.
183
Mary Robinson, Foreword to THE PRINCETON PRINCIPLES ON UNIVERSAL
JURISDICTION 15-16 (2001).
184
See Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347,
2348-49 (1991) (discussing the increasing use of transnational public law litigation invoking
"claims of right based not solely on domestic or international law, but rather, on a body of
`transnational' law that blends the two"); see also Robinson, supra note 183, at 25 (offering a
set of "principles to guide, as well as to give greater coherence and legitimacy to, the exercise
of universal jurisdiction").
185
See Amber Fitzgerald, The Pinochet Case: Head of State Immunity Within the
United States, 22 WHITTIER L. REV. 987, 1011-12 (2001) (citing cases that indicate an "inter-
national trend of denying immunity to heads of state").
186
See Provisional Arrest Warrant by Nicholas Evans, Metropolitan Magistrate, Bow
358 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
House of Lords ruled, in contrast to the New York court ruling in Baez a
century before,187
that Pinochet had no entitlement to claim immunity for
the crimes of which he was accused.188
Pinochet appears not to be an isolated case. In February 2000, a Sene-
galese court indicted Chad's exiled former dictator, Hissne Habré, on tor-
ture charges and placed him under virtual house arrest, marking the first
time an African country had brought human rights charges against another
country's head of state.189
Likewise, Slobodan Milo¹eviæ, the former Ser-
bian leader, was compelled to stand trial before an international tribunal.190
Street Magistrates' Court, London, England for Augusto Pinochet Ugarte (Oct. 16, 1998), in
PINOCHET PAPERS, supra note 34, at 61 (asserting Spanish jurisdiction over Augusto Pinochet
Ugarte). Although the House of Lords, in its final decision, ultimately determined that the
International Convention Against Torture (rather than general principles of universal jurisdic-
tion) provided its source of jurisdiction, Regina v. Bow St. Metro. Stipendiary Magistrate (No.
3), 1 A.C. 147, 189 (H.L. 1999), the convention itself can be seen as codifying the principles
of universal jurisdiction, see id. at 201 ("[I]f the states with the most obvious jurisdiction . . .
do not seek to extradite, the state where the alleged torturer is found must prosecute or, appar-
ently, extradite to another country, i.e. there is universal jurisdiction.").
187
Hatch v. Baez, 14 N.Y. Sup. Ct. 596, 599-600 (N.Y. Gen. Term 1876); see supra text
accompanying notes 169-170 (discussing the Baez case).
188
Bow St. Metro. Stipendiary Magistrate, 1 A.C. at 205. For the various Spanish and
English court documents in the Pinochet case, see generally PINOCHET PAPERS, supra note
34. For further discussion of the case, see generally THE PINOCHET CASE: A LEGAL AND
CONSTITUTIONAL ANALYSIS (Diana Woodhouse ed., 2000); J. Craig Barker, The Future of
Former Head of State Immunity After Ex Parte Pinochet, 48 INT'L & COMP. L.Q. 937 (1999);
Andrea Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 EUR. J. INT'L L. 237
(1999); Michael Byers, Decisions of British Courts During 1999 Involving Questions of Pub-
lic or Private International Law, 1999 BRIT. Y.B. INT'L L. 277, 277-95; Byers, supra note
172; Christine M. Chinkin, International Decision, United Kingdom House of Lords: Regina
v. Bow Street Stipendiary Magistrate, Ex Parte Pinochet Ugarte: Spanish Request for Extra-
dition, 93 AM. J. INT'L L. 703 (1999); Hazel Fox, The Pinochet Case No. 3, 48 INT'L &
COMP. L.Q. 687 (1999); Colin Warbrick, Extradition Law Aspects of Pinochet 3, 48 INT'L &
COMP. L.Q. 958 (1999).
189
Reed Brody, The Prosecution of Hissne Habré---An "African Pinochet," 35 NEW
ENG. L. REV. 321, 333-34 (2001). An appeals court subsequently quashed the indictment. Id.
at 330. In March 2001, Senegal's highest court ruled that Senegal had no jurisdiction to pur-
sue crimes not committed in the country. Press Release, Human Rights Watch, Senegal Bars
Charges Against Ex Chad Dictator (Mar. 20, 2001), at
http://www.hrw.org/press/2001/03/habre0320.htm. For background on the case, see Brody,
supra; Inbal Sansani, The Pinochet Precedent in Africa: Prosecution of Hissne Habré, 8
HUM. RTS. BRIEF, Winter 2001, at 32.
190
See, e.g., R. Jeffrey Smith, Serb Leaders Hand over Milosevic for Trial by War
Crimes Tribunal, WASH. POST, June 29, 2001, at A1 (discussing the extradition of former
Yugoslav president Milo¹eviæ "to face a U.N. tribunal in the Netherlands on charges of crimes
against humanity committed during the Kosovo conflict of 1999"); see also Peter Finn, Tribu-
nal Lives up to Its Promise, WASH. POST, June 29, 2001, at A1 ("When the war crimes tribu-
nal for the former Yugoslavia was created by the United Nations in 1993, its underlying prom-
ise was that no one . . . was beyond the reach of international justice. Today, in the most
dramatic moment in its history, the tribunal made good on that pledge.").
2002] GLOBALIZATION OF JURISDICTION 359
In addition, over the past two decades, aliens have begun to bring hu-
man rights suits in the United States against foreign and U.S. governments
and officials under the Alien Tort Claims Act (ATCA).191
Although the ju-
risdictional 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."192
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 gov-
ernments.193
Later decisions have upheld suits for genocide; war crimes;
summary execution; disappearance; prolonged arbitrary detention; and
cruel, inhuman, or degrading treatment.194
More recently, Congress passed
the Torture Victim Protection Act of 1991 (TVPA),195
which reinforces and
expands the ATCA by defining specific causes of action for torture and
summary execution and by permitting U.S. citizens as well as aliens to bring
suit.196
Successful suits have been brought under these statutes against vari-
ous members of the Guatemalan military,197
the estate of former Philippine
leader Ferdinand Marcos,198
and Serbian leader Radovan Karad¾iæ.199
Al-
though these are civil cases, and many of the monetary judgments issued
may never actually be paid, the suits have strong symbolic and emotional
value to the victims---they may deter potential defendants from entering
U.S. territory, and they reinforce the principle of universal, or at least trans-
national, jurisdiction.200
191
28 U.S.C. § 1350 (2000).
192
Id.
193
Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980).
194
See BETH STEPHENS & MICHAEL RATNER, INTERNATIONAL HUMAN RIGHTS
LITIGATION IN U.S. COURTS 343-48 (1996) (summarizing ATCA cases); see also William
Glaberson, U.S. Courts Become Arbiters of Global Rights and Wrongs, N.Y. TIMES, June 21,
2001, at A1 (discussing "the growing use of the American legal system to judge rights and
wrongs all over the globe").
195
Pub. L. No. 102-256, 106 Stat. 73 (1992).
196
Id.
197
See Xuncax v. Gramajo, 886 F. Supp. 162, 179 (D. Mass. 1995) (holding that the
alien plaintiffs could establish subject matter jurisdiction and a federal private cause of action
for tortious violations of international law under the ATCA).
198
See Hilao v. Estate of Marcos, 103 F.3d 789, 791-92 (9th Cir. 1996) (approving the
district court's assertion of federal jurisdiction under the ATCA).
199
See Kadic v. Karad¾iæ, 70 F.3d 232, 241-44 (2d Cir. 1995) (finding subject matter
jurisdiction exists under the ATCA to bring claims of genocide, war crimes, and torture
against the Bosnian-Serb leader).
200
See STEPHENS & RATNER, supra note 194, at 234-38 (emphasizing the substantial
nonmonetary impact of ATCA and TVPA claims).
360 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
International human rights suits against former and current governmen-
tal officials have been brought in courts outside the United States as well.
For example, in addition to the Pinochet and Habré cases, lawyers repre-
senting survivors of the 1982 Israeli invasion of Lebanon have asked a Bel-
gian court to indict Israeli Prime Minister Ariel Sharon, who was then the
Defense Minister, for war crimes.201
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.202
Although the International Court of Justice recently halted a Bel-
gian prosecution of the former Foreign Affairs Minister of the Democratic
Republic of Congo, citing the need for governmental immunity in
some circumstances,203
the sharp criticism this decision evoked204
demon-
strates that the overall landscape for international human rights suits has
201
See The Complaint Against Ariel Sharon for His Involvement in the Massacres at
Sabra and Shatila, The Palestinian Society for the Protection of Human Rights & the Envi-
ronment, at http://www.mallat.com/articles/complaintenglish.htm (last visited Nov. 18, 2002)
(claiming grave violations of international humanitarian laws). For press coverage of the
case, see, for example, Nicholas Blanford, Sharon Begins to Take War-Crimes Lawsuit Seri-
ously, CHRISTIAN SCI. MONITOR, July 30, 2001, at 7; Clyde Haberman, Israel Is Wary of
Long Reach in Rights Cases, N.Y. TIMES, July 28, 2001, at A1; Constant Brand, Court Asked
to Indict Sharon over Palestinian Massacre, INDEP., June 18, 2001,
http://www.independent.co.uk/story.jsp?story=78822.
202
See Blanford, supra note 201 ("Israel is taking the threat of possible prosecutions so
seriously that it has begun to draw a map of countries where Israeli leaders could face trial for
war crimes.").
203
See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Bel-
gium), General List No. 121,  70 (Feb. 14, 2002), at http://www.icj-cij.org/icjwww/
idocket/icobe/icobejudgment/icobe_ijudgment_20020214.pdf ("[G]iven the nature and pur-
pose of the warrant, its mere issue violated the immunity which Mr. Yerodia enjoyed as the
Congo's incumbent Minister of Foreign Affairs.").
204
For example, the dissenting judges in this case forcefully objected to the majority's
position that there are no exceptions to the immunity of high-ranking state officials, even
when they are accused of crimes against humanity. Democratic Republic of the Congo v.
Belgium (Al-Khasawneh, J., dissenting), at http://www.icj-cij.org/icjwww/
idocket/iCOBE/icobejudgment/icobe_ijudgment_20020214_al-khasawneh.pdf; see also, e.g.,
Press Release, International Commission of Jurists, International Court of Justice's Ruling on
Belgian Arrest Warrant Undermines International Law (Feb. 15, 2002), at
http://www.icj.org/article.php?sid=166 ("International humanitarian law and international
human rights law have accorded national States jurisdiction over persons committing interna-
tional 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 present-day law.").
2002] GLOBALIZATION OF JURISDICTION 361
changed.
Finally, a permanent International Criminal Court (ICC) has now been
established,205
after languishing during the Cold War era because of con-
cerns about incursions on national sovereignty.206
The court's jurisdiction is
limited only to the most serious crimes, such as war crimes, genocide, and
crimes against humanity.207
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.208
Nevertheless, the ICC represents another step along the
path away from the national sovereignty paradigm that has traditionally
dominated international relations.209
205
Rome Statute of the International Criminal Court, art. 5, para. 1, U.N. Doc.
A/CONF.183/9 (1998), available at http://www.un.org/icc.
206
See Benjamin B. Ferencz, An International Criminal Code and Court: Where They
Stand and Where They're Going, 30 COLUM. J. TRANSNAT'L L. 375, 383 (1992) ("[S]ome
sovereign states . . . were not prepared to live by a universally binding rule of international
criminal law."); Robert Rosenstock, Remarks Made at the Pace International Law Review
Symposium (Oct. 23, 1993), in 6 PACE INT'L L. REV. 83, 84 (1994) ("The split between East
and West was such as to make any creation of an institution such as an International Criminal
Court . . . all but unattainable."). Indeed, the United Nations Committee on International
Criminal Jurisdiction first submitted a draft statute for an international criminal court as early
as 1953. Revised Draft Statute for an International Criminal Court (Annex to the Report of
the 1953 Committee on International Criminal Jurisdiction), U.N. GAOR, 9th Sess., Supp.
No. 12, at 23, U.N. Doc. A/2645 (1954).
207
Rome Statute of the International Criminal Court, supra note 205, at art. 5, para. 1.
208
See, e.g., id. at art. 20, para. 3 (stating that the ICC does not have jurisdiction to retry
someone who has been tried in another court for conduct proscribed by the Rome Statute
"unless the proceedings in the other court . . . were not conducted independently or impartially
in accordance with the norms of due process . . . and were conducted in a manner which, in
the circumstances, was inconsistent with an intent to bring the person concerned to justice").
209
The Bush administration continues to object to the ICC on the ground that it will un-
duly interfere with U.S. sovereignty. See, e.g., Norman Kempster, U.S. May Back Creation
of Special Atrocity Tribunals, L.A. TIMES, Aug. 2, 2001, at A4 ("Opponents of a global [war
crimes] court have raised concerns that such a tribunal could be used to prosecute American
soldiers who are carrying out humanitarian missions."); Why America Says No, OMAHA
WORLD-HERALD, July 22, 2001, at 18A (supporting the Bush administration's opposition to a
permanent ICC because America's potential exposure to misuse of the court is greater than
that of most other nations); Bush Administration Ponders Position Towards International
Criminal Court, 17 INT'L ENFORCEMENT L. REP. (2001) (describing the Bush administra-
tion's resistance to the ICC on the ground that the court "infring[es] on the United States sov-
ereignty and maneuverability in national security policies"),
http://www.globalpolicy.org/intljustice/icc/2001/05icc.htm; Jim Lobe, Rights-US: Republi-
cans Urge Clinton to Oppose ICC, Inter Press Service, at http://
www.oneworld.org/ips2/jul98/22_32_097.html (July 23, 1998) (describing Republican sena-
tors' opposition to the ratification of the Rome Treaty, particularly to the court's jurisdiction
over the actions of a state that did not join the treaty); Brett D. Schaefer, Overturning Clin-
ton's Midnight Action on the International Criminal Court, EXECUTIVE MEMORANDUM
(Heritage Found., D.C.), Jan. 9, 2001 (arguing that the U.S. should not ratify the Rome Treaty
because it contains "significant flaws that threaten the rights of Americans and legitimate ac-
tivities of the U.S. military"), at http://
362 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
J. The Challenge of International Trade
We can see similar incursions to traditional ideas of nation-state sover-
eignty in the area of international commercial relations. Indeed, although
this field is often considered a part of "private international law," interna-
tional trade issues are increasingly seen to implicate important societal val-
ues such as environmental protection and labor standards. Therefore, it may
be that the traditional distinction between "public" and "private" interna-
tional law should be revisited.210
Traditionally, international law did not recognize the legitimacy of pub-
lic-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 inter-
national arbitral tribunal overwhelmingly rejected the claim because there
was no basis in international law for the U.S. to apply its standards of con-
servation to measures taking place outside its territory.211
Likewise, in the
www.heritage.org/Research/InternationalOrganizations/loader.cfm?url=/commonspot/security
/getfile.cfm&PageID=3411; Press Release, Office of U.S. Representative Ron Paul, Paul In-
troduces Resolution Opposing International Criminal Court (Feb. 7, 2001) (introducing H.R.
Con. Res. 23, a resolution calling for Congress and the President to oppose the ICC, and
"pointing out the threat to U.S. sovereignty posed by a court with international jurisdiction"),
at http://www.house.gov/paul/press/
press2001/pr020701.htm.
210
According to Black's Law Dictionary, public law consists generally "of constitu-
tional, 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 rela-
tionships 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 Chal-
lenge of Globalization to American Public Law Scholarship, 2 THEORETICAL INQUIRIES L.
323, 324 (2001) (noting that "legal realists relentlessly demonstrated that rules of `private'
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 back-
ground, 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 be-
tween the state and the people who compose it.'" Id. (quoting BLACK'S LAW DICTIONARY,
supra, at 1230).
211
See 1 JOHN BASSETT MOORE, HISTORY & DIGEST OF THE INTERNATIONAL
ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY 755-961 (Washington,
Government Printing Office 1898) (containing records from Pacific Fur Seal Arbitration
(U.S. v. Gr. Brit.)); see also Sands, supra note 37, at 529 (summarizing the case). Until the
Shrimp/Turtle case, discussed infra text accompanying notes 213-18, tribunals had generally
followed these same principles. Indeed, as recently as the early 1990s, the territorial sover-
eignty doctrine in international trade disputes seemed alive and well. See GATT Dispute Set-
2002] GLOBALIZATION OF JURISDICTION 363
nineteenth century there were no international organizations and no perma-
nent international courts, and if one state refused to submit a trade claim to
arbitration, the possibilities for enforcement were minimal.212
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 (WTO)
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 coun-
try, at least when those activities are harmful to migratory endangered spe-
cies.213
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 using a method that inci-
dentally killed sea turtles. The four Asian countries objected to the U.S.
ban, arguing that it violated WTO free trade rules. Contrary to the decision
in the seal case,214
the WTO appellate body ruled that the U.S. measures
were "provisionally justified" because the U.S. had a legal interest in the
protection of the sea turtles.215
In other words, as in the human rights cases,
tlement Panel Report on United States Restrictions on Imports of Tuna, 33 I.L.M. 839, 898
(1994) (finding that the U.S., in pursuit of its environmental objectives, could not "impose
trade embargoes to secure changes in the policies which other contracting parties pursued
within their own jurisdiction"); United States Restrictions on Imports of Tuna, Aug. 16, 1991,
GATT B.I.S.D. (39th Supp.) at 155-205 (1993) (noting that although a party can adopt its own
conservation policies, the panel rejects the extrajurisdictional application of those policies);
see also Benedict Kingsbury, The Tuna-Dolphin Controversy, The World Trade Organization,
and the Liberal Project to Reconceptualize International Law, 5 Y.B. INT'L ENVTL. L. 1, 20-
21 (1994) ("The GATT Secretariat . . . treat[s] territory (and perhaps nationality) as the essen-
tial basis for jurisdiction regardless of the trans-boundary or extra-jurisdictional dimensions of
many environmental and economic interests. . . . The WTO model is of state environmental
autonomy (from trade measures) within territorially-defined spheres of jurisdiction."); Torsten
H. Strom, Another Kick at the Can: Tuna/Dolphin II, 33 CANADIAN Y.B. INT'L L. 149, 160
(1995) (describing the panel's "fear of extrajurisdictionality and unilateralism"); Friedl Weiss,
The Second Tuna GATT Panel Report, 8 LEIDEN J. INT'L L. 135, 148-49 (1995) ("[U]nilateral
actions to deal with environmental challenges outside the jurisdiction of the importing country
should be avoided." (citations omitted)); Stephen Fleischer, Note, The Mexico-U.S.
Tuna/Dolphin Dispute in GATT: Exploring the Use of Trade Restrictions to Enforce Envi-
ronmental Standards, 3 TRANSNAT'L L. & CONTEMP. PROBS. 515, 547-48 (1993) (discussing
the Panel's ruling that the United States may not employ unilateral trade restrictions to impose
conservation policies on other members).
212
See Sands, supra note 37, at 529-30 (describing the international legal order at the
close of the nineteenth century).
213
Appellate Body Report on United States-Import Prohibition of Certain Shrimp and
Shrimp Products, WT/DS58/AB/R, at 75 (Oct. 12, 1998), http://www.wto.org/
english/tratop_e/dispu_e/distabase_wto_members4_e.htm.
214
See supra note 211 and accompanying text (discussing that case).
215
Appellate Body Report on United States-Import Prohibition of Certain Shrimp and
Shrimp Products, supra note 213, at 51.
364 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
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, how-
ever distant."216
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 hu-
man rights cases discussed previously) originated with non-state actors,
rather than with actions taken by the executive branch of a sovereign state.
Thus, in the Shrimp/Turtle case, the U.S. export restrictions at issue217
were
the result of legal proceedings initiated in federal courts by the Earth Island
Institute, a non-governmental organization.218
In the Pinochet case, the ex-
tradition request was the result of an investigation and charges initiated by a
judge based on a complaint brought by non-state actors.219
Non-state actors can also initiate transnational legal proceedings under
Chapter 11 of the North American Free Trade Agreement (NAFTA),220
which authorizes individuals and corporations to file claims with arbitral
panels221
(rather than national courts) if the complainant's government is
216
Sands, supra note 37, at 535. For an empirical analysis of the efficacy of unilateral
trade sanctions to protect the global environmental commons, see Richard W. Parker, The Use
and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn from the
Tuna-Dolphin Conflict, 12 GEO. INT'L ENVTL. L. REV. 1 (1999).
217
See Revised Notice of Guidelines for Determining Comparability of Foreign Pro-
grams for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed. Reg. 17,342
(Apr. 19, 1996) (revising guidelines used to determine whether a shrimp import prohibition
should apply to a nation).
218
See Earth Island Inst. v. Christopher, 948 F. Supp. 1062, 1070 (Ct. Int'l Trade 1996)
(denying motion to stay judgment clarifying embargo pending appeal), vacated sub nom.
Earth Island Inst. v. Albright, 147 F.3d 1352 (Fed. Cir. 1998); Earth Island Inst. v. Christo-
pher, 942 F. Supp. 597, 617 (Ct. Int'l Trade 1996) (clarifying that an embargo enacted by
Congress in response to earlier legal proceedings does not allow entry into the U.S. of any
shrimp harvested by citizens or vessels of nations not certified under 16 U.S.C. 1537 (2000)),
vacated sub nom. Earth Island Inst., 147 F.3d at 1352; Earth Island Inst. v. Christopher, 922
F. Supp. 616, 627 (Ct. Int'l Trade 1996) (denying federal officials' request for extension of
time for enforcing the Endangered Species Act (ESA) internationally), vacated sub nom.
Earth Island Inst., 147 F.3d at 1352; Earth Island Inst. v. Christopher, 913 F. Supp. 559, 575
(Ct. Int'l Trade 1995) (holding that federal officials are required to enforce the ESA on a
worldwide basis), vacated sub nom. Earth Island Inst., 147 F.3d at 1352.
219
For a description of the process in Spain and links to Spanish official documents re-
lating to the Pinochet case, see the websites of Diplomatie Judiciaire, at http://
www.diplomatiejudiciaire.com/Chili/Pinochet.htm, and Derechos Human Rights, at
http://www.derechos.org/nizkor/chile/juicio/eng.html. For materials relating to the Pinochet
case, beginning with the general's arrest, see PINOCHET PAPERS, supra note 34.
220
North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 605 (1993), avail-
able at http://www.nafta-sec-alena.org/english/index.htm.
221
Article 1120 of NAFTA provides that investor claimants may seek relief under one of
three sets of arbitral rules: (1) the International Centre for the Settlement of Investment Dis-
putes (ICSID) Rules; (2) the ICSID Additional Facility Rules; or (3) the United Nations Cen-
tre for International Trade Law (UNCITRAL) Arbitration Rules. 32 I.L.M. at 643.
2002] GLOBALIZATION OF JURISDICTION 365
alleged to have "expropriated" the complainant's investment.222
Moreover,
to take this step, no prior authorization is required from either the North
American Free Trade Commission or the Canadian, Mexican, or U.S. gov-
ernments.223
NAFTA's arbitration panels are even permitted to award the
complainant monetary damages if it is determined that the government vio-
lated or is violating NAFTA's investment provisions.224
Elsewhere, we see the widespread use of international non-
governmental regulatory frameworks. For example, the Apparel Industry
Partnership, a joint undertaking of non-governmental organizations, interna-
tional clothing manufacturers, and American universities, has established its
own quasi-governmental (but non-state) regulatory regime to help safeguard
public values concerning international labor standards. The partnership has
adopted a code of conduct on issues such 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).225
In the Internet
222
The relevant language of Article 1110 provides that "[no] party may directly or indi-
rectly . . . expropriate an investment . . . or take a measure tantamount to . . . expropriation . . .
except: (a) for a public purpose; (b) on a non-discriminatory basis; (c) in accordance with due
process of law and Article 1105(1); and (d) on payment of compensation." 32 I.L.M. at 641.
For these purposes, Article 201 defines "measure" to include "any law, regulation, procedure,
requirement or practice." 32 I.L.M. 298. For analyses of NAFTA's Chapter 11 investment
expropriation provisions, see David A. Gantz, Reconciling Environmental Protection and In-
vestor Rights Under Chapter 11 of NAFTA, 31 Envtl. L. Rep. (Envtl. L. Inst.) 10,646 (2001);
Paul S. Kibel, Awkward Evolution: Citizen Enforcement at the North American Environ-
mental Commission, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10,769 (2002); J. Martin Wagner, In-
ternational Investment, Expropriation and Environmental Protection, 29 GOLDEN GATE U. L.
REV. 465 (1999); Daniel A. Seligman, The Treaty Itself Undermines Environmental Protec-
tion, ENVTL. F., Mar./Apr. 2001, at 36.
223
See Kibel, supra note 222, at 10,775 (highlighting the strong enforcement mechanism
for trade-investment law compared to the weak enforcement mechanism for environmental
law under NAFTA due to the fact that under Chapter 11, corporations can force countries into
binding arbitration without prior approval from either the Commission or any of the govern-
ments involved).
224
See id. (noting that the monetary damages power under Chapter 11 has resulted in
troubling environmental outcomes as corporations have challenged and won large settlements
from governments over environmental regulation); see also Vicki Been & Joel C. Beauvais,
The Global Fifth Amendment: NAFTA's Investment Protections and the Misguided Quest for
an International "Regulatory Takings" Doctrine, 78 N.Y.U. L. REV. (forthcoming 2003) (ar-
guing that NAFTA tribunal decisions exceed U.S. regulatory takings laws in several substan-
tive and procedural respects, particularly in adoption of a broader definition of property, im-
position of a higher level of scrutiny over the political process, and institution of procedural
advantages as compared to litigation under the U.S. Fifth Amendment); Steve Louthan, Note,
A Brave New Lochner Era? The Constitutionality of NAFTA Chapter 11, 34 VAND. J.
TRANSNAT'L L. 1443, 1445 (2001) (arguing that Chapter 11 constitutes "the most significant
evisceration of state police power since the Supreme Court freed the states from Lochner's
shackels in 1937").
225
See Workplace Code of Conduct, Apparel Industry Partnership (providing a "set of
366 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
context, the "TRUSTe" coalition of service providers, software companies,
privacy advocates, and other actors has developed (and monitors) widely
adopted privacy standards for websites.226
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-commerce
issues.227
And, of course, the Internet Corporation for Assigned Names and
Numbers, discussed previously,228
is a non-state governmental body admin-
istering the domain name system.
* * * * * *
I do not mean to suggest that any of the challenges surveyed in this sec-
tion are unsolvable. Nor do I argue that these challenges, even taken to-
gether, mean that nation-states are on an inevitable path toward irrelevance
or dissolution.229
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 land-
scape has necessarily been brief, it should lead even the most skeptical ob-
server to believe that the challenges discussed are real ones that require our
attention. Moreover, these challenges share a common tendency to compli-
cate or unsettle our traditional assumption that the world order is and must
be built from the ideas of territorially based state sovereignty and fixed, im-
permeable borders. And if that is true, then this moment of unsettledness,
when we are struggling to adapt to changes across a wide variety of doc-
trinal areas, provides an opportunity to rethink the assumption rather than
simply try to stabilize it.
II. TEN RESPONSES
For those scholars, judges, and policy makers who have confronted cy-
berspace legal issues during the past decade, most of the ten challenges dis-
standards defining decent and humane working conditions"), at http://www.dol.gov/
esa/nosweat/partnership/report.htm (last visited Oct. 23, 2002).
226
See The TRUSTe Program: How It Protects Your Privacy, TRUSTe, at http://
www.truste.org/consumers/users_how.html (last visited Nov. 18, 2002) (describing its pro-
gram to ensure the protection of customer privacy).
227
See Global Business Dialogue on Electronic Commerce, at http://www.gbde.org (de-
scribing working groups as "a framework through which consensus continues to be achieved
between companies of different countries, cultures and sectors . . . using the tools of the digital
medium with minimal bureaucroacy [sic]").
228
See supra text accompanying notes 146-47 (discussing ICANN).
229
See, e.g., Michael Mann, Nation-States in Europe and Other Continents: Diversify-
ing, Developing, Not Dying, 122 DDALUS 115, 139 (1993) ("The nation-state is not hege-
monic, nor is it obsolete, either as a reality or as an ideal.").
2002] GLOBALIZATION OF JURISDICTION 367
cussed in the previous section are not new. To the contrary, numerous arti-
cles, judicial decisions, and domestic and international legislative and ad-
ministrative bodies have wrestled with these challenges, and the debate
about appropriate responses has been robust. In this Part, I identify ten re-
sponses 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 politi-
cal philosophy and its abstract conceptions of sovereignty and democratic
models of governance, or legal policy analysis, which focuses on the devel-
opment 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 experience on the
ground and that might complicate the governance models being dis-
cussed.230
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 juris-
diction 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 cyber-
space. 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) that
cyberspace should be deemed a distinct "place" for purposes of law-making
sovereignty,231
and that the law applicable to interactions in cyberspace
230
Even David Johnson and David Post, who come the closest to this sort of inquiry,
focus on jurisdiction as an issue primarily concerning the legitimate scope of sovereignty as a
matter of political philosophy and efficient organization. See infra notes 231-48 and accom-
panying text (discussing the arguments Johnson and Post have put forth).
231
See Johnson & Post, supra note 9, at 1378-79 (arguing that cyberspace is a unique
"space" and cannot be governed by laws that rely on traditional territorial borders, instead re-
quiring creation of a distinct and separate doctrine to be applied to cyberspace); see also Post,
supra note 9 (arguing that the nature of the Internet destroys the significance of physical loca-
tion, eliminating the possibility of a single, uniform legal standard); David G. Post, Of Black
Holes and Decentralized Law-Making in Cyberspace, 2 VAND. J. ENT. L. & PRAC. 70, 74-75
(2000) [hereinafter Post, Black Holes] (applying a theory of decentralized lawmaking 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. GLOBAL LEGAL STUD. 521, 527 (1998) (using the
dilemma of Internet governance to question the basis of state sovereignty); David G. Post &
David R. Johnson, "Chaos Prevailing on Every Continent": Towards a New Theory of De-
centralized Decision-Making in Complex Systems, 73 CHI.-KENT L. REV. 1055, 1084-90
368 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
"will not, could not, and should not be the same law as that applicable to
physical, geographically-defined territories."232
Thus, they contend that cy-
berspace should be its own jurisdictional entity. Given the onslaught of ter-
ritorially based regulation in cyberspace, this idea seems almost quaint a
mere six years after it was written. Nevertheless, the set of concerns John-
son and Post articulate still haunt the cyberspace regulatory landscape.
Post's article Governing Cyberspace233
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 juris-
diction over someone? His answer is that "[l]aw-making sovereignty . . . is
defined . . . by control over a physical territory."234
(1998) (using a problem-solving dilemma to argue in favor of decentralized decision making
over the Internet); David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making
in Cyberspace, 1995 J. ONLINE L. art. 3, at
http://warthog.cc.wm.edu/law/publications/jol/articles.post.
shtml [hereinafter Post, Anarchy] (examining the various groups and organizations that can
impose substantive rules on the Internet and arguing that the lack of physical borders in cyber-
space prevents effective rule making by centralized governments).
232
Johnson & Post, supra note 9, 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 Cen-
sors, 66 U. CIN. L. REV. 177, 205 (1997) (recognizing the difficulties states have in regulating
the global network, but arguing that certain private filtering and control mechanisms will ul-
timately facilitate far greater state regulation); John T. Delacourt, The International Impact of
Internet Regulation, 38 HARV. INT'L L.J. 207, 234-35 (1997) (contending that national regula-
tion of the Internet is inappropriate and that a consensual regime of user self-regulation should
be adopted); Joel R. Reidenberg, Governing Networks and Rule-Making in Cyberspace, 45
EMORY L.J. 911, 926 (1996) (arguing that the transnational nature of the Internet requires
governance by a collection of state, business, technical, and citizen forces).
233
Post, supra note 9.
234
Id. at 158. For this proposition, Post cites the RESTATEMENT (THIRD) OF THE
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, INTERNATIONAL LAW 276-314 (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 terri-
tory, a legal person cannot be a state."). Post, supra note 9, at 158 n.10. Nevertheless, this
vision of sovereignty may be overly simplistic. See, e.g., Henry H. Perritt, Jr., The Internet as
a Threat to Sovereignty? Thoughts on the Internet's Role in Strengthening National and
Global Governance, 5 IND. J. GLOBAL LEGAL STUD. 423, 424-25 (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 in-
teraction 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. INT'L L. &
POL'Y 717, 723 (1995) (distinguishing the liberal theory of international relations from real-
ism, on the grounds that realism assumes "that the primary actors are states, and define[s]
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. Infra Part IV.
2002] GLOBALIZATION OF JURISDICTION 369
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 the boundaries altogether."235
For ex-
ample, 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."236
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."237
Third, Post argues that it is incoher-
ent 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."238
Moreover,
according to Post, even if one tried to premise jurisdiction on whether an act
had a substantial effect within a particular state's territory (as Italy's highest
court has attempted),239
the formulation would be incoherent because "[t]he
effects of cyberspace transactions are felt everywhere, simultaneously and
equally in all corners of the global network."240
The problem, Johnson and Post contend, is that "[t]raditional legal doc-
trine treats the [Internet] as a mere transmission medium that facilitates the
exchange of messages sent from one legally significant geographical loca-
tion to another, each of which has its own applicable laws."241
Instead,
"[m]any of the jurisdictional and substantive quandaries raised by border-
crossing electronic communications could be resolved by one simple princi-
ple: conceiving of [c]yberspace as a distinct `place' for purposes of legal
analysis by recognizing a legally significant border between [c]yberspace
and the `real world.'"242
Thus, they argue for the creation of an indigenous
law of cyberspace. According to Johnson and Post, such a law not only
235
Post, supra note 9, at 159.
236
Id. at 160.
237
Id.
238
Id. at 161.
239
See supra notes 97-98 and accompanying text (relating the facts of an Internet juris-
diction case before the Italian Court of Cassation). American courts elaborating a test for
minimum contacts in cyberspace have also attempted to base jurisdiction on the effects of
online activity. See infra text accompanying notes 432­443 (providing a sampling of such
cases).
240
Post, supra note 9, at 162.
241
Johnson & Post, supra note 9, at 1378.
242
Id.
370 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
would sidestep most of the territorial dilemmas we encountered in the pre-
vious Section, it would also allow for new law to develop that would take
into account many of the distinctive features of online interaction.243
Finally, Johnson and Post summon a radically decentralized vision of
law formation and enforcement wherein cyberspace will be its own self-
regulating jurisdiction.244
In his subsequent article, Anarchy, State, and the
Internet,245
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 archi-
tecture of the website (such as a screen that prevents the user from accessing
information unless personal information or a credit card number is pro-
vided). Post envisions a kind of free market in law, whereby users will
"vote" with their browsers and only frequent those parts of cyberspace with
rule-sets to their liking.246
Thus, one could theoretically opt out of the
"law" of eBay and go somewhere else. Similarly, if AOL's terms of service
are distasteful, other Internet Service Providers (ISPs) are available. In
Post's view, this will mean that "[t]he `law of the Internet' . . . emerges, not
from the decision of some higher 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."247
In ad-
dition, to the extent necessary, territorial sovereigns would enforce cyber-
space law as a matter of comity.248
While their "e pluribus cyberspace" view is provocative and has forced
scholars to grapple with important dilemmas, the Johnson and Post ap-
proach is problematic in several respects. First, they appear to have se-
verely underestimated the ability of territorially based sovereigns to regulate
cyberspace. Indeed, their implicit vision of the state and its exercise of
power is unduly limited. As James Boyle has pointed out,249
their cyber-
243
See id. at 1380-87 (applying the theory to various substantive areas of cyberspace
regulation).
244
See id. at 1396-1400 (arguing that as the development of distinct "rule-sets" in cyber-
space proceeds, groups will come together to define the conduct and content acceptable in
their "area" of cyberspace).
245
Post, Anarchy, supra note 231.
246
See Post, supra note 9, at 169 (arguing that subscribers' ability to "vote with their
electrons" creates a veritable free market wherein subscribers will be able to choose a set of
rules that orders their online experience according to their preferences); see also Post, Black
Holes, supra note 231, at 70-73 (applying his approach to the problem of junk e-mail).
247
Post, supra note 9, at 167.
248
See Johnson & Post, supra note 9, at 1391-95.
249
See Boyle, supra note 232, at 184-85 (positing that cyber-libertarians can only con-
ceive of the law as "command[s] backed by threats, issued by a sovereign who acknowledges
2002] GLOBALIZATION OF JURISDICTION 371
libertarian approach only makes sense if one has an "Austinian"250
positivist
vision of a lumbering state asserting sovereign prerogatives only by enact-
ing laws and arresting people who disobey them. From that perspective,
perhaps, states may face difficulties regulating cyberspace (though the re-
cent success of authorities in China and elsewhere to censor online con-
tent251
suggests that states may have maintained even this type of regulatory
power). But enacting laws and arresting people is neither the only nor even
the most effective way in which states regulate. Boyle posits a more subtle
"Foucauldian"252
view, in which government regulates by changing the ar-
chitecture of the space itself.253
Thus, by affecting how the "code" of cy-
berspace 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 con-
ception of sovereignty as necessarily tied to physical power and territorial
no superior, directed to a geographically defined population which renders that sovereign ha-
bitual obedience").
250
See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED
(Isaiah Berlin et al. eds., Weidenfeld & Nicholson 1954) (1832) (presenting a positivist theory
of law, whereby law is seen as merely the command of the sovereign).
251
See, e.g., SHANTHI KALATHIL & TAYLOR C. BOAS, THE INTERNET AND STATE
CONTROL IN AUTHORITARIAN REGIMES: CHINA, CUBA, AND THE COUNTERREVOLUTION 4-
10 (Carnegie Endowment for Int'l Peace, Working Paper No. 21, 2001) (detailing the success
of Chinese authorities in curtailing potentially challenging uses of the Internet), available at
http://www.ceip.org/files/pdf/21kalathilboas.pdf; Chen May Yee, Playing by Strict Rules
Online, ASIAN WALL ST. J., June 22, 2001, at N1 (describing Yahoo! China's acquiescence in
removing Taiwanese content at the behest of the Chinese government); Freedom of Expres-
sion and the Internet in China, Human Rights Watch (Aug. 1, 2001), at
http://www.hrw.org/backgrounder/asia/china-bck-0701.htm (describing the success of Chi-
nese efforts to curb Internet use through regulation and enforcement actions). But see Jennifer
Lee, Punching Holes in Internet Walls, N.Y. TIMES, Apr. 26, 2001, at G1 (describing efforts
of various web services to help users circumvent government restrictions and technical gate-
ways).
252
See generally MICHEL FOUCAULT, DISCIPLINE AND PUNISH (Alan Sheridan trans.,
Vintage Books 2d ed. 1995) (1978) (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).
253
Lawrence Lessig's discussion of cyberspace regulation and policy takes a similar ap-
proach. See, e.g., LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 43-60
(1999) (describing ways in which government can regulate by controlling or dictating techni-
cal architecture); see also Boyle, supra note 232, at 202-04 (discussing potential means for
regulating cyberspace through hardware and regulatory solutions); Alan Hunt, Foucault's Ex-
pulsion of Law: Toward a Retrieval, 17 LAW & SOC. INQUIRY 1, 8 (1992) (describing Fou-
cault's belief that law---understood as centralized juridical state power--had lost its impor-
tance in modernity and had been eclipsed by power that is specific, local, fragmentary, and
dispersed).
372 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
boundaries may be overly simplistic. As we will see later in this Article,
alternative conceptions of sovereignty pose challenges to the Johnson and
Post view.254
Third, their vision of competing rule-sets makes sense if, and only if, al-
ternative rule-sets are always available. For example, it is all well and good
to say that a user who does not like AOL's terms of service can go else-
where. But if there are no other ISPs or, more realistically, if all other pro-
viders with similar capabilities to AOL also have the same terms of service,
the rule-set competition is meaningless.255
Johnson and Post seem to as-
sume 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 be-
comes dominated by large multinational content providers that could effec-
tively monopolize a given market. Johnson and Post might argue that anti-
trust laws would prevent such an accretion of market power. Such laws,
however, would require the involvement of the state (or perhaps multiple
states) in the regulation of anticompetitive activities in cyberspace, which
Johnson and Post wish to avoid.
Finally, the need for antitrust enforcement illustrates a larger problem
underlying Johnson and Post's 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,256
and members of the Criti-
cal Legal Studies movement, in their efforts to challenge the public-private
distinction,257
however, have repeatedly argued that this sort of assumption
254
Infra Part IV.
255
See Patricia Fusco, Top U.S. ISPs by Subscriber: Q2 2001--Market Insights, ISP
Planet (Aug. 17, 2001), at http://www.isp-planet.com/research/rankings/usa_history_
q22001.html (indicating that AOL's market share in the United States is one-third and that "it
would take United Online, EarthLink and MSN combined to rival AOL's current market
share"). As a practical matter, the switching costs may also be more burdensome for most
consumers than Johnson and Post assume.
256
See, e.g., Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8, 11-30
(1927) (discussing the treatment of property in American courts in a critique of laissez-faire
philosophy); Robert L. Hale, Force and the State: A Comparison of "Political" and "Eco-
nomic" Compulsion, 35 COLUM. L. REV. 149, 199 (1935) (arguing for an expanded role of the
Fourteenth Amendment to curb the abuses of laissez-faire). See generally BARBARA H.
FRIED, THE PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LAW
AND ECONOMICS MOVEMENT (1998) (discussing the work of Robert Hale and the realist cri-
tique of libertarianism and the laissez-faire tradition).
257
See, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 242-68 (1987)
(describing the Critical Legal Studies approach to the role of law in creating society and soci-
ety's actors); 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, 380 (1983)
2002] GLOBALIZATION OF JURISDICTION 373
undermines the whole idea of "private ordering" because it presupposes a
"public" regime of enforcement and policing as well as a baseline of back-
ground rights. If this is the case, the Johnson and Post scheme will run into
the very jurisdictional problems they seek to avoid because territorial sover-
eigns will inevitably be called upon to establish and enforce those back-
ground rights. Although a detailed discussion of this longstanding public-
private debate is far beyond the scope of this Article, it is worth recognizing
that the issue resurfaces in the context of cyberspace.258
B. Coase in Cyberspace
The Johnson and Post approach assumes that contract law increasingly
will become the primary law of cyberspace. Without embracing the entirety
of Johnson and Post's vision, a number of other scholars have similarly ar-
gued that the best response to the conundrums of cyberspace governance is
to rely on the fact that cyberspace, by reducing both transaction costs and
barriers to entry and exit, enables a more perfect Coasean world.259
Such a
world, premised on contractual relations, seems to offer a way around juris-
dictional 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 pro-
vide sufficient space for public, noncontractual values. The battle has been
particularly fierce in the field of intellectual property.260
Increasingly, the
(critiquing "the public-private distinction in constitutional law"); Clare Dalton, An Essay in
the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, 1010-14 (1985) (considering the
development of contract doctrine in light of the public-private distinction and the realist cri-
tique); Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U.
PA. L. REV. 1349, 1350-57 (1982) (reviewing the decline of the public-private distinction in
six stages); Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. MICH. J.L.
REFORM 835, 842-58 (1985) (contending that the distinction between public and private ac-
tion is meaningless in the family law context because court actions take the form of state-
sponsored policy decisions); Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV.
1151, 1196 (1985) (describing the "public/private" metaphor for representing the social world
as "one of the primary representational constructs for the liberty of contract jurisprudence").
258
For further discussions of the public-private distinction with respect to cyberspace,
see Paul Schiff Berman, Cyberspace and the State Action Debate: The Cultural Value of Ap-
plying Constitutional Norms to "Private" Regulation, 71 U. COLO. L. REV. 1263 (2000);
Margaret Jane Radin & R. Polk Wagner, The Myth of Private Ordering: Rediscovering Legal
Realism in Cyberspace, 73 CHI.­KENT L. REV. 1295, 1295 (1998).
259
See generally R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960) (ex-
amining legal solutions to the problem of harmful effects in an ideal market with no transac-
tion costs).
260
For a sampling of articles staking out positions concerning the use of contract and
other "private ordering" models for regulating intellectual property, see generally Tom W.
374 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
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 copy-
right 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 read.261
Likewise, under the fair use doctrine, I can create my own parody of the
book or excerpt passages for critical or educational use.262
And there are
various other copyright doctrines that aim to strike a balance between grant-
ing incentives to copyright holders and allowing the broadest possible dis-
semination of information.263
Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's
Fair Use Doctrine, 76 N.C. L. REV. 557, 579-600 (1998); James Boyle, Cruel, Mean, or Lav-
ish? Economic Analysis, Price Discrimination and Digital Intellectual Property, 53 VAND. L.
REV. 2007, 2010-21 (2000); Julie E. Cohen, Copyright and the Jurisprudence of Self-Help, 13
BERKELEY TECH. L.J. 1089, 1101-18 (1998); Julie E. Cohen, Copyright and the Perfect
Curve, 53 VAND. L. REV. 1799 (2000) [hereinafter Cohen, Perfect Curve]; Niva Elkin-Koren,
Copyright Policy and the Limits of Freedom of Contract, 12 BERKELEY TECH. L.J. 93, 108-13
(1997); William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV.
1203, 1218-40 (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,
1163-71 (1998); Michael J. Meurer, Price Discrimination, Personal Use and Piracy: Copy-
right Protection of Digital Works, 45 BUFF. L. REV. 845, 876-93 (1997); Raymond T. Nim-
mer, Breaking Barriers: The Relation Between Contract and Intellectual Property Law, 13
BERKELEY TECH. L.J. 827, 844-60 (1998); Maureen A. O'Rourke, Copyright Preemption Af-
ter the ProCD Case: A Market-Based Approach, 12 BERKELEY TECH. L.J. 53, 81-91 (1997).
261
See 17 U.S.C. § 109(a) (2000) ("[T]he owner of a particular copy . . . is entitled,
without the authority of the copyright owner, to sell or otherwise dispose of the possession of
that copy . . . ."). 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).
262
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 (2000) ("[T]he fair use of a copy-
righted work, including such use by reproduction in copies . . . for purposes such as . . . teach-
ing . . . is not an infringement of copyright.").
263
For example, the U.S. Supreme Court has 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 Publ'ns, Inc. 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, 104 (1879) (holding that the publication of an accounting sys-
tem is copyrightable, but not the system itself), as well as the doctrine that expression must
have a "modicum" of originality in order to be protected, see Feist Publ'ns, 499 U.S. at 345
("The sine qua non of copyright is originality."). Whether or not these doctrines sufficiently
protect First Amendment values has been the subject of debate. 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 scru-
2002] GLOBALIZATION OF JURISDICTION 375
If the same book were downloaded 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.
These conditions, furthermore, could be unrelated to the rights that users
hold under copyright law. For example, I could be required to agree to pur-
chase 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. More significantly, tech-
nology increasingly makes it possible for the owner actually to enforce such
agreements. For example, the electronic file could be encoded with infor-
mation that would make it impossible for me to distribute the file electroni-
cally to someone else without paying additional money. Alternatively, 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 gov-
erned 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:
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. Digi-
tal fingerprints and watermarks will help to identify texts. Encryption will be
used to protect programs against decompilation, or to scramble source code so
that it cannot be parsed.
264
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.265
tiny).
264
Boyle, supra note 260, at 2025.
265
See 17 U.S.C. § 1201 (2000) (setting forth the relevant provisions regarding circum-
vention of copyright protection systems). Critics have argued that the Digital Millennium
Copyright Act (DMCA) has overly enhanced the ability of copyright owners to wield elec-
376 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
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 finely-grained price
discrimination, potentially permitting more people to access material at a
price closer to what they are able to afford.266
To conceptualize this, as-
sume 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.
This hypothetical scenario assumes, of course, 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
tronic protective measures to control new kinds of exploitation of their works. See, e.g.,
LITMAN, supra note 261, at 81-86 (describing ways in which technological self-help, enforced
by the DMCA, could lead to the overexpansion of copyright); Julie E. Cohen, WIPO Copy-
right Treaty Implementation in the United States: Will Fair Use Survive?, 21 EUR. INTELL.
PROP. REV. 236, 237-39 (1999) (arguing that the DMCA 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 the balance between incentives for copyright holders and
public access has shifted toward "a free market in property rights rooted in the natural enti-
tlement 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 DMCA "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 DMCA are overbroad and warning of "its poten-
tial for substantial unintended detrimental consequences"); Yochai Benkler, The Battle over
the Institutional Ecosystem in the Digital Environment, 44 COMM. ASS'N COMPUTING
MACHINERY 84, 86 (2001) (arguing that "the expansion of exclusive private rights in informa-
tion tilts the institutional ecosystem within which information is produced against peer pro-
duction 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 cur-
rent critiques, supports a continued role for control in a new technological environment," and
suggesting that "the logic underlying [the DMCA] is consistent with earlier approaches to
copyright/technology conflicts").
266
See, e.g., Fisher, supra note 260, at 1239-40 (setting forth a hypothetical whereby
technology could be used to maximize returns while differentially charging consumers).
2002] GLOBALIZATION OF JURISDICTION 377
with different price points. Some versions may have stripped down fea-
tures. 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.
Moreover, there is nothing to prevent a secondary used book market from
developing, thereby skewing the price discrimination altogether. Thus,
"[e]ffective 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."267
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. They ar-
gue that there will be greater access to information and more incentive to
create original material if contract is allowed free reign.
There are, however, at least three problems with this approach. 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 uncopy-
rightable 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."268
Thus, the public as a whole may
benefit from access to information that no one individual would value suffi-
ciently to purchase. And even if an individual were to purchase the infor-
mation, there is no guarantee that the information would be disseminated to
those who could not afford it. Third, online licensing contracts are often not
true bargains. Rather, they are simply "clickstream" agreements that are en-
tered into by parties of different bargaining power and sophistication. In-
deed, the recent battle over proposed Article 2B of the Uniform Commercial
Code and the subsequent Uniform Computer Information Transactions Act
(UCITA) has been waged in part over the issue of whether such contracts
should be binding in all circumstances.269
Finally, as discussed previously,
267
Cohen, Perfect Curve, supra note 260, at 1804.
268
Id. at 1809.
269
UCITA was formerly draft Article 2B of the U.C.C., until the American Law Insti-
tute 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 UNIF. COMPUTER INFO. TRANSACTIONS ACT § 209, 7 U.L.A. 288 (1999) ("A party adopts
the terms of a mass-market license . . . only if the party agrees to the license, such as by mani-
festing assent, before or during the party's initial performance or use of or access to the in-
formation."), available at http://www.law.
378 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
these contractual "solutions" do not actually remove the need for state inter-
vention because some government must always be in the background to en-
force any contractual agreement.
C. A World of Online Passports
In response to the French lawsuit concerning access to Nazi memora-
bilia, Yahoo! argued that it could not feasibly block French users from ac-
cessing the offensive websites without censoring those sites altogether.270
According to Yahoo!, "no existing technology could effectively keep all
French users from seeing" the sites at issue.271
Ultimately, the French court
appointed a panel of three experts to test Yahoo!'s technical argument.272
The panel estimated that, for approximately seventy 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 ac-
cordingly.273
The IP addresses for French users of America Online, how-
ever, would appear to originate in Virginia, where the headquarters of
AOL's network is located.274
Similarly, IP addresses on the private net-
works of large corporations might indicate the location of the server rather
than the user.275
Finally, the panel noted that users could actively conceal
upenn.edu/bll/ulc/ucita/cita10st.doc. One of the principal points of contention about both Ar-
ticle 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 reme-
dies to be awarded, and the implied warranties of noninfringement, merchantability, and pro-
gram 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 CAL. L. REV. 111, 122 (1999). And,
although there is the possibility of such a contract being deemed unconscionable, that possibil-
ity is relatively remote given courts' general reluctance to void contracts on unconscionability
grounds.
270
See Angela Doland, French Oppose Yahoo! on Nazi Items, ASSOCIATED PRESS, 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."),
http://www.codoh.com/newsdesk/2000/000724ap.html.
271
Id.
272
T.G.I. Paris, Aug. 11, 2000, http://www.legalis.net/cgi-iddn/french/
affiche-jnet.cgi?droite=decisions/responsabilite/ord_tgi-paris_110800.htm (ordering the for-
mation of a panel of technical experts to determine whether Yahoo! could identify and filter
out French users from the sites found to violate French law).
273
Document de travail sur le rapport d'expertise, T.G.I. Paris, Nov. 6, 2000,
http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001106-rp.htm (presenting the report of the
three experts who tested whether Yahoo! could identify and filter out French users).
274
Id.
275
Id.
2002] GLOBALIZATION OF JURISDICTION 379
their location by using "anonymization sites" that replace the user's IP ad-
dress with a different one from another location.276
Thus, the panel con-
cluded that one hundred percent geographical identification was infeasi-
ble.277
Nevertheless, in imposing its order the French court appeared to em-
brace 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 cyber-libertarians
have argued that cyberspace is unregulatable by geographically based sov-
ereigns, the Yahoo! decision reflects the idea that, even if perfect regulation
is impossible, such regulation can still be effective. After all, the fact that
locks can be picked does not render locks useless as regulatory devices.278
Moreover, the technology to zone cyberspace based on physical geog-
raphy 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 physical geography.279
Significantly, although
commentators initially warned that governments might try to impose a digi-
tal identification requirement on cyberspace,280
it appears to be private in-
dustry and not government that is leading the charge. For businesses, geo-
graphical tracking permits marketing campaigns tailored to customers in
specific locations281
and the ability to sell more targeted advertising.282
Nevertheless, once the technology exists, government regulators may insist
(just as the French judge in Yahoo! did) that sites employ this technology to
enforce local laws.
276
Id.
277
Id.
278
This example is drawn from LESSIG, supra note 253, at 57.
279
We Know Where You Live, FORBES.COM (Nov. 13, 2000), at www.forbes.com/
global/2000/1113/0323130a_print.html; see Michael Geist, E-Borders Loom, for Better or
Worse, TORONTO GLOBE & MAIL, June 28, 2001 (discussing Internet content providers'
growing interest in determining the physical location of web resources and the people who
access them), http://www.globetechnology.com/servlet/GAMArticleHTML
Template?tf=globetechnology/; Stefanie Olsen, Geographic Tracking Raises Opportunities,
Fears, CNET NEWS.COM (Nov. 8, 2000), at http://news.cnet.com/2102-1023-248274.html
(discussing Internet providers' efforts to "pinpoint the physical location of Web surfers").
280
See, e.g., LESSIG, supra note 253, at 49-53 (discussing the alternatives governments
could use to impose digital identification).
281
See Olsen, supra note 279 ("[A] traditional retailer such as Banana Republic could
hawk swimming suits to Web visitors from Los Angeles as it pushes parkas to online shoppers
from New York.").
282
See Geist, supra note 279 ("[N]ational and global Web sites may now use geographic
identification technology to guarantee advertisers that their ads will only be displayed to a lo-
cal audience.").
380 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
If geographical tracking technology becomes 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, city, town, or zip code) and then offered content that has been zoned
for members of that geographical community. A recent legal battle con-
cerning iCraveTV.com, a Canadian corporation, illustrates how this would
work. In 1999, the company began offering a streaming version of seven-
teen Canadian and American broadcast television stations online, uncut, and
uninterrupted.283
When challenged, the company argued that such retrans-
mission was permitted under Canadian copyright law,284
and that the site
was intended for Canadian viewers only.285
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 would be denied
access to the service.286
Users who negotiated the first step were then con-
fronted with two icons: "I'm in Canada" and "Not in Canada" and were
asked to click one.287
Ultimately, a federal judge in Pittsburgh ruled that
"acts of [United States copyright] infringement were committed within the
United States when United States citizens received and viewed defendants'
streaming of the copyrighted materials."288
The judge issued a temporary
restraining order against the Internet company,289
which subsequently set-
tled the case290
and later went out of business.291
Since that time, however,
283
See Nat'l Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d (BNA) 1831, 1834
(W.D. Pa. 2000) (alleging that "defendants have captured United States programming from
television stations in Buffalo, New York and elsewhere, converted these television signals
into . . . data and streamed them over the Internet from [their] website"). For more details on
the allegations, see John Borland, Broadcasters Win Battle Against iCraveTV.com, CNET
NEWS.COM, Jan. 28, 2000, at http://news.cnet.com/
news/0-1004-200-1535528.html (reporting on the legal battle between the Internet-based tele-
vision company and American broadcasters).
284
Because the suit was ultimately decided under U.S. law and then settled, this conten-
tion was never tested. For a discussion of the Canadian law with regard to this case, see Mi-
chael A. Geist, iCraveTV and the New Rules of Internet Broadcasting, 23 U. ARK. LITTLE
ROCK L. REV. 223, 225-37 (2000).
285
See TVRadioNow Corp., 53 U.S.P.Q.2d (BNA) at 1834 (recounting the defense ar-
guments).
286
See Geist, supra note 284, 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").
287
Id. at 226.
288
TVRadioNow Corp., 53 U.S.P.Q.2d (BNA) at 1834-35.
289
Id. at 1833.
290
See Etan Vlessing, iCraveTV Settles, Wraps Webcast, 361 HOLLYWOOD REP., Feb.
29, 2000, at 4.
291
Panel II: Digital Video, 11 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 317, 338
2002] GLOBALIZATION OF JURISDICTION 381
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 ensure that only Canadians will be able to ac-
cess
the site.292
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, which would more effectively block ac-
cess to those without Canadian identification.
Geographical tracing and digital identification technology therefore ap-
pear to "solve" the problem raised in cases such as Yahoo! and TVRa-
dioNow. Using this technology, website operators or Internet Service Pro-
viders 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 juris-
diction in order to determine which users to admit.293
Second, Internet 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.294
Even more ominous is the possibility
that the loss of geographical anonymity might make people more reluctant
to visit certain sites, for fear that they may be identified.295
Finally, if, as in
Yahoo!, a website operator in the United States refuses to block French citi-
zens accessing the site, how will France enforce its wishes? Thus, the juris-
dictional puzzle may not be completely solved.
(2001) (remarks of Jeffrey Cunard).
292
See Geist, supra note 279 ("Canada's JumpTV has garnered considerable publicity
from its plans to use geographic identification technology to limit its Internet retransmission
of TV signals to Canadians."); Ed Hore, JumpTV Wants to Put TV Signals on the Internet,
LAW. WKLY., Jan. 12, 2001.
293
See Open Letter from Ben Laurie, supra note 90 (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").
294
See, e.g., Jessica Litman, Privacy and E-Commerce, 7 B.U. J. SCI. & TECH. L. 223,
225 (2001) (arguing that cases such as Yahoo! and TVRadioNow, which give ISPs some re-
sponsibility for controlling access to people in different geographic areas, will exacerbate pri-
vacy concerns because, if an ISP has to know where you are, then there will be greater incen-
tives to link web profiles with physical locations).
295
See, e.g., Jonathan D. Glater, Hemming in the World Wide Web, N.Y. TIMES, Jan. 7,
2001, § 4, at 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)).
382 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
D. You Enforce My Laws, I'll Enforce Yours
Lawrence Lessig, in his book Code and Other Laws of Cyberspace,296
offers a theory of international regulation of cyberspace activity that at-
tempts to solve the question that the technological response in the previous
Section leaves open: even if a website operator could easily identify the ter-
ritorial location of each user, what is it that would compel a website opera-
tor to enforce the laws enacted in other jurisdictions? One answer, of
course, is that, at least for commercial sites, the desire to operate interna-
tionally will exert a strong persuasive force, as Yahoo!'s "voluntary" capitu-
lation to the French order demonstrates. Nevertheless, Lessig's approach
goes farther than that by involving governments in a series of reciprocal en-
forcement arrangements.
Lessig starts by outlining the standard cyber-libertarian argument that
the Internet is unregulatable.297
This argument, reminiscent of the Johnson
and Post approach discussed previously,298
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, 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 offshore, to the Grand Caymans or the Bahamas,
or somewhere else where they will not be prosecuted. It is still no more dif-
ficult for American citizens to gain access to the gambling sites, and territo-
rial regulation appears to have failed.299
Lessig answers this dilemma with the concept of reciprocal enforce-
ment. According to Lessig, "[e]ach state [or nation] would promise to en-
force on servers within its jurisdiction the regulations of other states for citi-
zens from those other states, in exchange for having its own regulations
296
LESSIG, supra note 253.
297
See id. at 54-55 (describing Minnesota's attempt to enforce a law banning gambling
online and recounting the argument that it is "practically impossible for geographically limited
governments to enforce their rules over actors on the [Internet]").
298
Supra text accompanying notes 231-58.
299
Cf. LESSIG, supra note 253, at 54-55 (explaining that "[n]o matter what Minnesota
does, it seems the [Internet] helps its citizens beat the government").
2002] GLOBALIZATION OF JURISDICTION 383
enforced in other jurisdictions."300
Lessig argues that although states do not
necessarily have the same regulatory goals, they all at least have some laws
that they wish to have 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's keeping Florida citizens away from New York servers offering con-
tent deemed impermissible in Florida. According to Lessig, "[w]ith a sim-
ple way to verify citizenship, a simple way to verify that servers are dis-
criminating on the basis of citizenship, and a federal commitment to support
such local discrimination, we could easily imagine an architecture that en-
ables local regulation of Internet behavior."301
Indeed, such architecture
would be similar to the online passports discussed in the previous Section.
Moreover, Lessig envisions this system of reciprocal enforcement operating
internationally as well. He states, albeit without explanation, that "[t]here is
the same interest internationally in enforcing local laws as there is nation-
ally---indeed, the interest is most likely even higher."302
A selective certification system would, as Lessig observes, "dramati-
cally increase the power of local governments to impose requirements on
their citizens."303
Websites would condition access on the presentation of
digital certificates, and rules imposed by local jurisdictions would be en-
forced 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 regu-
lable space imaginable.
304
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 Ameri-
can commitment to First Amendment values is quite strong, and any gov-
ernmental efforts to help France enforce its order would surely be met by
fierce opposition (and lawsuits) within the United States. Indeed, the fed-
300
Id. at 55.
301
Id. at 55-56.
302
Id. at 56.
303
Id. at 56-57.
304
Id. at 57.
384 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
eral district court order declaring the French judgment unenforceable in the
United States articulated such First Amendment concerns as part of its
justification.305
Moreover, Yahoo! and other businesses would likely argue that the zon-
ing scheme Lessig envisions would be costly to enforce even if the technol-
ogy 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. de-
claratory judgment action:
Technology alone is not the issue. . . . Under the French court's 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 those countries, and imple-
ment some sort of blocking software that would screen different categories of
material from users in different countries. This would be obviously too bur-
densome for even enormous companies like Yahoo!, and would literally be a
death knell for smaller companies and non-profit organizations.
306
Such arguments might well persuade jurisdictions to forgo reciprocal en-
forcement in many cases.
Finally, as the discussion of Yahoo! indicates,307
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 prose-
cute gambling sites;308
and governments in China, Saudi Arabia, Singapore
305
It is unclear, however, whether or not the mere enforcement of a foreign order should
be deemed sufficient state action to trigger constitutional concerns. In Shelley v. Kraemer,
334 U.S. 1 (1948), the U.S. Supreme Court ruled that judicial enforcement of racially restric-
tive covenants would violate the Equal Protection Clause of the Fourteenth Amendment, U.S.
CONST. amend. XIV, § 1. Kramer, 334 U.S. at 20-21. On the other hand, Shelley's logic
"consistently applied, would require individuals to conform their private agreements to consti-
tutional standards whenever, as almost always, the individuals might later seek the security of
potential judicial enforcement." LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW
1697 (2d ed. 1988). This question, of course, implicates longstanding debates about the co-
herence of trying to draw a distinction between "private" and "public" action for constitu-
tional purposes. For a discussion of such debates, see Berman, supra note 258. I am grateful
to Mark Rosen for noting some of the problems inherent in the application of the state action
doctrine to the judicial enforcement of foreign "unconstitutional" judgments.
306
Brief of Amici Curiae Chamber of Commerce of the United States et al. at 6-7, Ya-
hoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1181 (N.D.
Cal. 2001) (No. 00-21275).
307
Supra Part I.D.
308
See, e.g., Humphrey ex rel. State v. Granite Gates Resorts, Inc., 568 N.W.2d 715, 721
(Minn. Ct. App. 1997) (affirming the exercise of jurisdiction over a non-resident corporation
and its principal for deceptive trade practices, false advertising, and consumer fraud in con-
nection with an Internet gambling site); Vacco ex rel. People v. World Interactive Gaming
Corp., 714 N.Y.S.2d 844, 854 (N.Y. Sup. Ct. 1999) (declaring that the Attorney General of
New York is entitled to injunctive relief against a non-resident corporation and subsidiaries
2002] GLOBALIZATION OF JURISDICTION 385
and elsewhere try to block access to sites for political or religious rea-
sons.309
Countries may be able to regulate such sites within their borders,
but they may well find it difficult to convince other countries to enforce
their restrictions, even in the reciprocal scheme Lessig envisions. More-
over, efforts to enforce local norms might run counter to the current trend of
increasing international norm-creation in the human rights area.310
Thus,
many would argue that other nations' "sensitivities should not serve as an
excuse to block sites that promote the protection of human rights."311
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 ef-
fects. According to Lessig, "it is as likely that the majority of people would
resist these small but efficient regulators of the [Internet] as it is that cows
would resist wire fences."312
An even more fundamental objection to this approach, one that Lessig
himself seems to share,313
is more normative. A cyberspace where indi-
viduals could only access content that was approved by their government
would be a very different cyberspace from the one most people have experi-
enced so far. Indeed, many of the most highly touted features of the Internet
are functions of its relatively open architecture. Thus, observers have
for offering Internet gambling to residents of New York).
309
See, e.g., Mary Kwang, Internet Dreams: China's New Generation, STRAITS TIMES
(Singapore), July 16, 2001 (quoting a Washington-based official of Human Rights Watch as
complaining that "`China's attempts to control access to the Internet through politically-
motivated regulations and detentions blatantly violate users' rights to free expression'"); Tan
Tarn How, Foreign Websites That Refuse to Register "Can Be Blocked," STRAITS TIMES
(Singapore), Sept. 1, 2001 (reporting that Singapore's government may block access to for-
eign websites that do not register in Singapore as political websites as required by a new law
that limits political campaigning by websites during an election); Tougher Regulations on
Internet Cafes Planned, MIDDLE EAST NEWSFILE (Saudi Arabia), Sept. 9, 2001, at LEXIS,
Moclip File (describing regulations on Internet cafés that would bar access to websites
deemed offensive to Islam and the political system).
310
See supra Part I.I (discussing the challenge that international and transnational human
rights enforcement poses for jurisdiction).
311
Glater, supra note 295 (quoting William F. Schulz, Executive Director of U.S. Op-
erations for Amnesty International).
312
LESSIG, supra note 253, at 57.
313
Lessig addresses the reader directly to make this point:
Stop. Don't turn away. I know at least some of the thousands of reasons 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.
386 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
lauded the Internet's power (or at least potential) to democratize where peo-
ple get their news;314
to make more accessible all forms of political315
and
artistic expression;316
to alert the international community about environ-
mental317
and human
rights abuses318
occurring anywhere in the world; and to facilitate political
organizing.319
Without these benefits, we may lose some of the attributes
314
See, e.g., ANDREW L. SHAPIRO, THE CONTROL REVOLUTION 34-38 (1999) (describ-
ing 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 re-
porting of the Clinton-Lewinsky affair as an example of shifting power away from exclusive
reliance on mainstream news sources).
315
See, e.g., Glater, supra note 295 ("[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 government's efforts to block them." (quoting William F.
Schulz, Executive Director of U.S. Operations for Amnesty International)).
316
See, e.g., John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on
the Global Net, Electronic Frontier Foundation, at http://www.eff.org/Publications/
John_Perry_Barlow/idea_economy.article (last visited Nov. 20, 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 . . . .").
317
See, e.g., Environmentalists Use High Tech to Delay Dolphin Massacre; Internet Im-
ages Key to Strategy, Says BlueVoice.org Director, ASCRIBE NEWSWIRE, Oct. 26, 2001,
LEXIS, Ascrbe File ("`The Internet is absolutely crucial to [the] strategy of stopping these . . .
environmental abuses.'" (quoting Hardy Jones, Executive Director of BlueVoice.org)); Jeffrey
B. Gracer, Green Risks on the Rise, LATINFINANCE, Sept. 2000, LEXIS, Lafn File ("As a re-
sult of, among other things, democratization and the Internet, the days of environmental im-
punity in the region are numbered. Opposition political parties, the media, local and interna-
tional non-governmental organizations (NGOs), and indigenous groups are effectively shining
the spotlight on companies and projects with significant environmental impacts."); Graham
Searjeant, Globalisation Can Work Better if We Try, TIMES (London), Jan. 25, 2001, LEXIS,
Ttimes File ("The global power of information, often via the Internet, is already helping
Western consumers to voice their views on distant environmental abuse . . . ."); Mel Wilson &
Rosie Lombardi, Globalization and Its Discontents: The Arrival of Triple-Bottom Line Re-
porting, IVEY BUSINESS JOURNAL, Sept./Oct. 2001, LEXIS, Allnews File (linking the rise in
anti-globalization sentiment with the rise of the Internet in the mid-1990s, when "[r]eport after
report about the alleged environmental and human rights misdeeds of corporations appeared in
mainstream media, as advocacy groups used the Internet to organize and publicize their
causes").
318
As William F. Schulz, Executive Director of Amnesty International's 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 295.
319
See Henry H. Perritt, Jr., The Internet Is Changing the Public International Legal
2002] GLOBALIZATION OF JURISDICTION 387
that have made the Internet both so popular and so significant.
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 re-
gimes. After all, if a universal substantive law were applied around the
world, many of the concerns about borders, conflicting law, and impermis-
sible extraterritorial regulation would disappear. Nevertheless, as the dis-
cussions in the next two sections indicate, international norms are often dif-
ficult 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 its limitations. First, I will examine an older treaty,
the Berne Convention for the Protection of Literary and Artistic Works,320
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.321
1. The Berne Convention
During the first meetings in 1883 to form the Berne Convention, an at-
tempt was made to institute a uniform international copyright system.322
By
System, 88 KY. L.J. 885, 899 (1999-2000) (arguing that "[t]he Internet's low economic barri-
ers to entry provide a voice to political actors who otherwise would be denied effective access
to the public arena," and that "[b]ecause 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").
320
Paris Act Relating to the Berne Convention for the Protection of Literary and Artistic
Works of September 9, 1886, concluded July 24, 1971, 1161 U.N.T.S. 3 [hereinafter Berne
Convention]. The first version of the Berne Convention was concluded in 1886, and after
several revisions the Convention was ultimately concluded in 1971. See generally SAM
RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC
WORKS: 1886-1986, at 3-125 (1987) (tracing the development of the Berne Convention).
321
See Hague Conference on Private International Law, Preliminary Draft Convention
on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, Oct. 30, 1999, at
http://www.hcch.net/e/workprog/jdgm.html. Because the Hague Convention focuses on the
enforcement of individual nation-state judgments, it is not truly aimed at the harmonization of
substantive norms. Nevertheless, the Convention does seek to harmonize nation-state proce-
dural rules for recognition and enforcement of judgments. Moreover, the controversies sur-
rounding the Convention illustrate some of the difficulties such formal international efforts are
likely to encounter, even when the goal is something less than substantive harmonization.
322
See Jane C. Ginsburg, International Copyright: From a "Bundle" of National Copy-
388 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
the time the Convention concluded three years later, however, that ambition
had been rebuffed, and the Berne Convention stopped far short of true har-
monization.323
Instead, the participating countries agreed to a system of
"national treatment," whereby member states agreed to give authors from
other signatory states the same rights as those states apply to domestic au-
thors.324
Moreover, the Convention established a set of minimum require-
ments for copyright protection to which all signatory states must adhere.325
While this idea of minimum standards could in theory have resulted in a
strong set of international norms, the actual minimum requirements set by
the Convention were extremely weak and relatively easy to meet.326
Thus, the Convention allowed great latitude for signatory states to de-
velop their own copyright regimes and create their own norms regarding, for
example, how to define the "author" for purposes of copyright protection327
right Laws to a Supranational Code?, 47 J. COPYRIGHT SOC'Y USA 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.
323
See 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 322, at 269
("In general, in comparison to the universalist draft adopted at the 1883 Conference, the . . .
draft of 1884 moved away from the idea of a comprehensive uniform international law of
copyright."). But see id. at 270 ("Although the Convention did not achieve every goal out-
lined at the first Congress of 1858, it represented a major step towards international copyright
protection. . . . [It also] la[id] the groundwork for later evolution toward the more universalist
ideal expressed in earlier drafts.").
324
See Berne Convention, supra note 320, 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 . . . .").
325
See Dinwoodie, supra note 323, at 490-91 (discussing minimum substantive stan-
dards agreed upon in the Berne Convention).
326
See RICKETSON, supra note 320, at 53, 73-74 (noting that in order to include as many
countries as possible, the conference elected to set up a flexible convention).
327
See STEPHEN M. STEWART, INTERNATIONAL COPYRIGHT AND NEIGHBOURING
RIGHTS § 4.46 (2d ed. 1989) ("The Convention does not define the term `author' which it uses
throughout. . . . In the absence of convention law it is, therefore, for national legislation to
decide who the owner of the copyright is."). For example, U.S. copyright law, taking a mar-
ket-oriented approach, recognizes employers as authors of works prepared by employees
within the scope of their employment, see 17 U.S.C. § 201(b) (2000) (providing that "the em-
ployer or other person for whom the work is prepared is considered the author" of a work
made for hire); 17 U.S.C. § 101 (2000) (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 employ-
ment relationship, see Law No. 92-597 of July 1, 1992, J.O., July 3, 1992, p.4; D.S.L. 1997
2002] GLOBALIZATION OF JURISDICTION 389
and how to carve out exceptions to copyright to respond to free speech con-
cerns328
or effectuate other social policies.329
Throughout the twentieth cen-
tury, "[t]he 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."330
As
a result, changes to the Berne Convention have generally represented mere
codifications of commonly accepted policies that, in many cases, had al-
ready been implemented in the national laws of most member states before
being incorporated into the Convention.331
Moreover, such changes have
always been developed through the laborious process of treaty revision.332
2. The Hague Convention
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 that the conference attempt to harmonize international rules
for enforcement of judgments across borders.333
Almost ten years later, that
goal continues to elude convention delegates, largely because of a lack of
consensus about adjudicatory jurisdiction generally, and about jurisdiction
over online commercial transactions in particular.334
Indeed, the disagree-
(amended Mar. 27, 1997) (Fr.) (providing for copyright ownership by employers only with
respect to software).
328
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).
329
See Dinwoodie, supra note 323, at 492 ("Although these different [national] ap-
proaches 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 (using Australian copyright law as a "test case" in order to demonstrate that
"the present Berne text, together with the useful overlay of implied minor exceptions, do[es]
provide national legislators with a reasonable degree of flexibility").
330
Dinwoodie, supra note 323, at 492-93 (citation omitted).
331
See id. at 493 (arguing that the agreements produced were codifications of commonly
held policies).
332
See id. at 494 (describing treaty revision as "a means of updating the [C]onvention").
333
See Marc E. Hankin, Proposed Hague Convention Would Help IP Owners, NAT'L
L.J., July 23, 2001, at C20 (describing the U.S. government's request "that the Hague Confer-
ence on Private International Law, of which the United States is a member state, negotiate and
draft a convention on jurisdiction and the enforcement of judgments in foreign countries").
334
See, e.g., 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 coun-
390 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
ments are now so entrenched that at the most recent meeting of delegates,
the primary agreement reached was to have an informal working group de-
velop a new draft text to be submitted in 2003.335
* * * * * *
Both of these attempts at international harmonization reveal the princi-
pal drawback of attempting to establish international norms through multi-
lateral treaties. Almost by definition, these treaties will demand prior con-
sensus among many countries with different social policies and economic
interests. Thus, the treaties will tend merely to codify painstakingly devel-
oped conventional wisdom about recognized problems.336
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."337
Accordingly, the classi-
cal model of public international lawmaking may not be the appropriate
mechanism for achieving international harmonization in a fast-changing
world.
F. Teaching the World to Sing in Perfect Harmony II: Supranational
Administrative/Adjudicative Bodies
Given the cumbersome nature of public international lawmaking, inter-
national harmonization efforts, unsurprisingly, have shifted in recent years
to a somewhat more dynamic model, particularly in fields of rapid techno-
logical development. For example, since the 1994 Uruguay Round Revision
of the General Agreement on Tariffs and Trade (GATT),338
commercial
trade issues that were formerly hashed out through diplomatic channels are
now addressed by WTO dispute resolution panels in a more adjudicatory
tries have worked on an answer for more than two years, and it continues to elude them.").
335
Andrea Schulz, Reflection Paper to Assist in the Preparation of a Convention on
Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters, Hague Conference on Private International Law, at
ftp://ftp.hcch.net/doc/
jdgm_pd19e.doc (Aug. 19, 2002).336
See, e.g., J.H. Reichman, The Know-How Gap in the TRIPS Agreement: Why Soft-
ware Fared Badly, and What Are the Solutions, 17 HASTINGS COMM. & ENT. L.J. 763, 765
(1995) (arguing that "both the strengths and weaknesses of [one international treaty] stem
from [the treaty's] essentially backwards-looking character").
337
Dinwoodie, supra note 323, at 494.
338
See Understanding on Rules and Procedures Governing the Settlement of Disputes,
Dec. 15, 1993, Marrakesh Agreement Establishing the World Trade Organization, Annex 2,
LEGAL TEXTS--THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE
NEGOTIATIONS, 33 I.L.M. 112 (1994) [hereinafter DSU] (establishing the rules and proce-
dures to be used in WTO dispute settlement proceedings).
2002] GLOBALIZATION OF JURISDICTION 391
fashion.339
Likewise, the Arbitration and Mediation Center of the World In-
tellectual Property Organization (WIPO) adjudicates fifty-eight percent of
the trademark disputes filed under the Internet Corporation for Assigned
Names and Numbers's Uniform Dispute Resolution Policy.340
The advantages of the more dynamic model are obvious. International
institutions with some form of adjudicatory body can react far more quickly
to new developments without the need for diplomatic conferences or com-
plete consensus.341
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 WTO dispute settlement system, as many cases were filed as in the
entire forty-seven-year period preceding the Uruguay Round.342
Nevertheless, there are several reasons to resist this dynamic model.
First, the Dispute Settlement Understanding of the WTO makes clear that its
rulings "cannot add to or diminish the rights and obligations provided in the
covered agreements."343
Although the panels may, over time, expand their
ability to "interpret" (and thereby define or change) international law, the
governing documents seem designed to constrain any truly creative admin-
istrative or judicial role.
Second, as the violent protests at international gatherings over the last
few years344
indicate, bodies such as the WTO and the WIPO face serious
objections from the perspective of procedural transparency and democratic
legitimacy.345
Perhaps because they were developed in the context of inter-
339
See Dinwoodie, supra note 323, 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. INT'L L. 171, 171-72 (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. INT'L L. REV. 1223, 1224-25 (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"). To the extent that parties perceive WTO rulings as more readily en-
forceable, this perception could also help account for the increase in actions filed.
340
Geist, Fair.Com?, supra note 147.
341
See Dinwoodie, supra note 323, at 494-95 (arguing that "efforts to enable interna-
tional institutions to react more quickly to new developments without the need for diplomatic
conferences or complete consensus" are one aspect of the new public international model).
342
See Chua, supra note 339, at 172 (reporting in 1998 that "GATT dispute settlement
panels resolved more than 100 cases between 1947 and 1994," but "[s]ince the implementa-
tion of the DSU in 1995, the WTO has received over 100 trade disputes with 28 cases pro-
ceeding to a dispute settlement panel" (citations omitted)).
343
DSU, supra note 338, at art. 3.2.
344
See supra note 19 (citing sources that discuss such protests).
345
As David Post has argued:
[T]he 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
392 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
national diplomacy, these bodies assume a model of mediation, negotiation,
conciliation, and secrecy that might make us pause before endowing them
with the power to create international norms.346
For example, many observ-
ers have urged that the procedures of these bodies be made more transpar-
ent, through open hearings, greater access to the submissions of parties, and
the ability of non-state parties to participate.347
Even beyond procedural is-
sues, however, WTO panels face the 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, appoint-
ment, confirmation, or removal of decision makers. In contrast, WTO panel
members are selected through an obscure process,348
and no democratically
accountable official is involved.349
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 en-
vironment? It's an essential problem and a very difficult one.
Thomas E. Baker ed., A Roundtable Discussion with Lawrence Lessig, David G. Post & Jef-
frey Rosen, 49 DRAKE L. REV. 441, 443 (2001).
346
See David Palmeter, National Sovereignty and the World Trade Organization, 2 J.
WORLD INTELL. PROP. 77, 80-81 (1999) (arguing that the WTO's diplomatic model does not
fit a traditional legalistic model).
347
See Van der Borght, supra note 339, at 1241-42 (describing WTO procedures and
suggested reforms); see also Sands, supra note 37, 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 pro-
ceedings).
348
Article 8 of the DSU, supra note 338, provides the rules for the composition of pan-
els. The WTO Secretariat proposes nominations to the panel, which can be disputed only for
compelling reasons. Id. at art. 8(6). The Secretariat maintains a list of qualified governmental
and non-governmental individuals. Id. at art. 8(4). The qualifications are general. The panel-
ists 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 a
[WTO] Member or of a contracting party to GATT 1947 or as a representative to the
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.
Id. at 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 ex-
perience." Id. at art. 8(2). The panelists generally cannot be from the disputant country, id. at
art. 8(3), and must "serve in their individual capacities and not as government representatives,
nor as representatives of any organization," id. at art. 8(9).
349
See Dinwoodie, supra note 323, at 506 (pointing out the poor representational legiti-
macy of the WTO panels because they are "insulated from democratic pressures"); David M.
2002] GLOBALIZATION OF JURISDICTION 393
Thus, we see a "democratic deficit"350
because lawmakers lack electoral re-
sponsibility to the "`people' whose `sovereignty'" they exercise.351
As one
commentator has argued, "the GATT is not the world constitution, and the
WTO 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."352
Not sur-
prisingly, such unmoored legal authority faces resistance on the ground.
Third, the structure of the WTO 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. For example, in the
copyright context, the United States Trade Representative may well take the
position in disputes before the WTO or WIPO that greater copyright protec-
tion is beneficial to U.S. industry as a whole. This position would ignore
those who might advocate a lower level of protection in order to create
greater distributional equity between countries or to protect non-trade inter-
ests, such as privacy or free speech. In addition, the lack of procedural
transparency or democratic accountability may make such international ad-
ministrative/adjudicative bodies more readily 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
Driesen, What Is Free Trade?: The Real Issue Lurking Behind the Trade and Environment
Debate, 41 VA. J. INT'L L. 279, 315-16 (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 Peo-
ples Assembly: Legitimacy and the Power of Popular Sovereignty, 36 STAN. J. INT'L 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 opposi-
tion to many of its initiatives").
350
See Ruth Okediji, Toward an International Fair Use Doctrine, 39 COLUM. J.
TRANSNAT'L 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
Francesca E. Bignami, The Democratic Deficit in European Community Rulemaking: A Call
for Notice and Comment in Comitology, 40 HARV. INT'L L.J. 451, 456-72 (1999) (outlining
the democratic deficit critique); Peter L. Lindseth, Democratic Legitimacy and the Adminis-
trative Character of Supranationalism: The Example of the European Community, 99
COLUM. L. REV. 628, 628 (1999) (arguing that the European Community's "`democratic defi-
cit' flows primarily from an inability to establish democratically-legitimate hierarchical su-
pervision over supranational technocrats­-a problem bound up with the historical relationship
between demos, democracy and national political institutions as cultural symbols of popular
sovereignty").
351
See Lindseth, supra note 350, at 633 (arguing that supranational institutions raise
questions of democratic legitimacy due to the "transfer of normative power to agents that are
not electorally responsible" to the people they represent).
352
Dinwoodie, supra note 323, at 505.
394 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
ruled in favor of the trademark holders 82.2% of the time.353
Fourth, the very advantage of these bodies--their ability to address new
issues in a changing environment--may also be a disadvantage. After all, a
decision of a WTO dispute resolution body may not only establish interna-
tional norms, but also may entrench those norms, freezing them in place and
preempting the ability of various countries to experiment with different ap-
proaches. Such international norms may tend to frustrate more local 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 au-
thors are compensated may differ from country to country depending upon es-
tablished labor and employment practices. The ways in which works are ex-
ploited, and thus need to be protected, may hinge upon social customs unique
to particular countries. The extent of reasonable copying privileges may re-
flect 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 af-
fected 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.
354
Whether or not one believes that international norms should subsume local
variations, it is surely problematic that such overarching norms might be es-
tablished by marginally accountable bodies with input often from only two
litigating countries.
Finally, some critics have suggested that the very goal of harmonization
may be misguided. For example, Paul Stephan has pointed out two com-
mon outcomes of the harmonization process,355
neither of which is norma-
tively desirable. First, Stephan contends that international-harmonization
efforts are often the product of rent seeking by various industry groups. He
suggests that many harmonization efforts in commercial law are initiated by
particular industries seeking particular legal rules. The resulting interna-
tional 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
353
Geist, Fair.com?, supra note 147, at 6. Geist also found that, in cases where the par-
ties opt for a single arbitrator rather than a panel of three (90% of the total), the complainant
wins 84.4% of the time. Id. at 18.
354
Dinwoodie, supra note 323, at 513-14 (footnote omitted).
355
Paul B. Stephan, The Futility of Unification and Harmonization in International
Commercial Law, 39 VA. J. INT'L L. 743, 744 (1999).
2002] GLOBALIZATION OF JURISDICTION 395
relatively vague standards in order to smooth over major policy disagree-
ments. These standards, because they are couched in such general language,
become a license for domestic decision makers to exercise broad discretion
in interpreting international norms. As a result, the law may well become
even less certain than it was before, thus foiling the harmonization effort al-
together. Accordingly, Stephan argues that "[t]he political economy of [the
harmonization] process results too often either in rules written for the bene-
fit of particular industries and other interest groups, or in the suppression of
conflict that in turn increases legal risk."356
Instead, he envisions a system
that would allow parties virtually unlimited power to choose among national
rules through private contractual agreements.357
Whether or not one em-
braces 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 ef-
forts to harmonize legal regimes, one possible alternative is to consider the
role national courts might play in developing international norms. In sev-
eral recent articles, Graeme Dinwoodie has advocated this approach, par-
ticularly with regard to copyright law.358
Essentially, Dinwoodie asks
courts to develop an international common
law, resurrecting the "lex mercatoria"359
that for centuries governed interna-
tional trade.360
356
Id.
357
Id. at 789.
358
See Dinwoodie, supra note 323, at 475 (arguing for national courts to be enlisted in
the "task of copyright internationalization by sketching a new choice-of-law methodology");
see also Graeme B. Dinwoodie, The Development and Incorporation of International Norms
in the Formation of Copyright Law, 62 OHIO ST. L.J. 733, 777-81 (2001) (suggesting an en-
hanced role for private litigation in the development of international copyright norms and the
revision of choice-of-law methodology to permit national courts to consider international
norms).
359
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 refer-
ence 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. INT'L L. 427, 473 n.167
(2001) (quoting Berthold Goldman, The Applicable Law: General Principles of Law---The
Lex Mercatoria, in CONTEMPORARY PROBLEMS IN INTERNATIONAL ARBITRATION 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. INT'L L. REV. 657, 672-74 (1999) (explaining the sources of lex mercatoria). 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
396 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
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.361
This process fore-
closes courts from considering international norms that might exist "sepa-
rate and apart from domestic policy objectives."362
As Dinwoodie points
out, however, international disputes often "implicate interests beyond those
at stake in purely domestic disputes."363
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."364
He therefore reasoned that a court could not "choose
wisely without considering how that choice will affect that controversy."365
Building on Cavers, Dinwoodie argues that the judicial role often involves
choices among many different substantive solutions and that courts should
be free to generate legal standards in multistate cases the same way they do
in purely domestic cases.366
Moreover, "statutory rules enacted by a na-
tional legislature are rarely enacted with an eye to international disputes or
trade practices rather than any particular national positive law. See Lawrence M. Friedman,
Erewhon: The Coming Global Legal Order, 37 STAN. J. INT'L L. 347, 356 (2001) (describing
the origins of lex mercatoria); Philip J. McConnaughay, The Scope of Autonomy in Interna-
tional Contracts and Its Relation to Economic Regulation and Development, 39 COLUM. J.
TRANSNAT'L L. 595, 610 n.31 (2001) ("`[L]ex mercatoria' . . . refer[s] generally to the norms,
principles and customs that emanate from cross-border commerce without reference to any
given national law."). 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) (describing persons engaged in international commerce as an example of
an effective international community). 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 (stating that one of the goals of lex mercatoria is to "get rid of
the cumbersome exercise of applying conflict rules"), although as with all common law doc-
trines, uncertainties may remain with regard to the substantive norms to be applied.
360
See Dinwoodie, supra note 323, at 522 (noting that international copyright norms
may be developed by reference to lex mercatoria); see also Boaventura De Sousa Santos,
Law: A Map of Misreading: Toward a Postmodern Conception of Law, 14 J.L. SOC'Y 279,
287 (1987) (describing the re-emergence of lex mercatoria as an example of one way in which
"[t]ransnational capital has . . . created a transnational legal space, a supra-state legality").
361
See Dinwoodie, supra note 323, at 475 ("Each of these approaches requires courts to
decide issues raised by such disputes according to a single national law.").
362
Id.
363
Id. at 476.
364
David F. Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. REV. 173,
189 (1933).
365
Id.
366
See Dinwoodie, supra note 323, at 548 ("[D]omestic courts frequently develop the
law in a way that does not involve the application of a single pre-articulated rule; they should
be free to do so also in multinational cases.").
2002] GLOBALIZATION OF JURISDICTION 397
conduct."367
As a result, these legislative choices inevitably reflect domes-
tic 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
countries. When courts arbitrarily (or even not so arbitrarily) choose to ap-
ply one country's laws over the other, they are responding only to one coun-
try's interests.368
In Dinwoodie's view, courts instead should develop an
appropriate rule "from an amalgam of national and international norms."369
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."370
Significantly, Dinwoodie's argument reaches back to conflict-of-laws
approaches that predate the rise of the Westphalian order of independent
sovereign states.371
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 be-
tween law and a sovereign."372
Dinwoodie argues, however, that these ap-
proaches may once again be worth considering given "the relative decline of
the nation-state."373
Thus, like the arguments I make in this Article, Din-
woodie'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 lawmaking and ju-
risdictional 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
367
Id. at 548-49.
368
See id. at 552 ("If the dispute implicates substantial interests of both State A and
State B, it is inequitable to treat such facts (automatically) in the same way as either a dispute
wholly implicating the interests of State A or wholly implicating the interests of State B.")
369
Id. at 550.
370
Id. at 544-50.
371
See supra note 24 and accompanying text (describing the centrality of the idea of
state sovereignty in the Westphalian order).
372
Dinwoodie, supra note 323, at 544.
373
Id.
398 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
when rules are made and enforced by private rather than public institu-
tions."374
Perritt advocates public-private hybrid governance structures. In his
model, public law sets minimum general standards and provides enforce-
ment power, while multiple "private regulatory regimes can work out de-
tailed rules, first-level dispute resolution, and rule enforcement machin-
ery."375
And, like the contractarian model discussed previously,376
Perritt
believes that this sort of hybrid governance system could exercise jurisdic-
tion through contractual agreement, thereby side-stepping legitimacy con-
cerns.377
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 administers the Internet domain name system and
provides an online dispute resolution forum for adjudicating domain name
conflicts.378
Second, he notes that the recent agreement between the Euro-
pean Union and the United States concerning privacy protection envisions
several private regulatory regimes.379
Third, he argues that credit card com-
panies will provide dispute resolution mechanisms for virtually all credit
card based Internet commerce.380
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 do-
main names,381
administrative panels of WIPO adjudicate these controver-
sies using ICANN regulations,382
and domain name registrars revoke or
374
Henry H. Perritt, Jr., Economic and Other Barriers to Electronic Commerce, 21 U.
PA. J. INT'L ECON. L. 563, 574 (2000).
375
Id. at 575; see generally Perritt, supra note 319, at 890-94 (highlighting the differ-
ences between public and private law).
376
See supra Part II.B.
377
See Perritt, supra note 374, at 575 (describing the benefits of contract-based jurisdic-
tion).
378
See Perritt, supra note 319, at 940-44 (discussing the scope of ICANN's regulatory
responsibilities).
379
See id. at 932-40 (commenting on the procedures envisioned by the European Com-
mission and the United States in enforcing compliance with the safe harbor rules).
380
See Henry H. Perritt, Jr., Dispute Resolution in Cyberspace: Demand for New Forms
of ADR, 15 OHIO ST. J. ON DISP. RESOL. 675, 691-92 (2000) (discussing the most common
form of alternative dispute resolution for consumer disputes--the credit card chargeback).
381
See Uniform Domain-Name Dispute-Resolution Policy, ICANN, at http://
www.icann.org/udrp/udrp.htm (last updated Aug. 26, 2001) ("Under the policy, most types of
trademark-based domain-name disputes must be resolved by agreement, court action, or arbi-
tration before a registrar will cancel, suspend, or transfer a domain name.").
382
See Supplemental Rules for Uniform Domain Name Dispute Resolution Policy,
WIPO, at http://arbiter.wipo.int/domains/rules/supplemental.html (in effect as of Dec. 1,
2002] GLOBALIZATION OF JURISDICTION 399
transfer domain names in accordance with panel decisions.383
Likewise,
current privacy regulatory regimes depend upon private third parties who
will certify that an Internet site complies, thereby immunizing members
from public regulatory action.384
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 for products purchased.385
Nevertheless, such private regulatory bodies raise serious concerns
about accountability and transparency. For example, in the United States,
under the Supreme Court's traditional interpretation of the so-called "state
action doctrine,"386
these private entities need not comply with constitu-
tional norms.387
Similarly, one wonders how well minority rights will be
protected in these private regimes and by what mechanisms such entities
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 October 24,
1999.").
383
See Registrar Accreditation Agreement § II(k), ICANN, at http://
www.icann.org/nsi/icann-raa-04nov99.htm (approved Nov. 4, 1999) ("[The] Registrar shall
have . . . a policy and procedure for resolution of disputes concerning SLD [second-level do-
main] 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 pol-
icy or procedure.").
384
See, e.g., BBBOnline, at http://www.bbbonline.org (last visited Nov. 20, 2002) (of-
fering a process by which to file a complaint against an offending website for use of person-
ally identifiable information); TRUSTe, at http://www.truste.org (last visited Nov. 20, 2002)
(outlining TRUSTe's policy of certifying a subject website with a visible logo and inclusion
of a privacy statement that adheres to privately established privacy policies).
385
See Perritt, supra note 374, at 577 ("[C]redit card issuers are intermediaries adjusting
disputes between merchants and consumers."); see also Robert D. Cooter & Edward L. Rubin,
A Theory of Loss Allocation for Consumer Payments, 66 TEX. L. REV. 63, 101-02 (1987) (de-
scribing the rights of card issuers to cancel a cardholder's account under certain circum-
stances).
386
The state action doctrine has its genesis in an 1883 U.S. Supreme Court decision
overturning Reconstruction-era civil rights legislation. See The Civil Rights Cases, 109 U.S.
3, 11 (1883) (holding that "individual invasion of individual rights is not the subject-matter of
the [Fourteenth] [A]mendment," but that the amendment governs the conduct of the states and
those that act in their stead). In its least nuanced form, the doctrine 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, § 1 (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 individ-
ual's choice to exclude African-Americans from her home. Similarly in cyberspace, so the
doctrine might go, the activities of private corporations, such as America Online, ICANN, or
the other bodies that Perritt describes, are not subject to the Constitution because they are not
state actors.
387
For a discussion of such concerns, see generally Berman, supra note 258.
400 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
will ensure impartial decision making and fair procedure.388
While these
same concerns arise in the public arena,389
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 Gold-
smith, 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."390
Goldsmith takes on two related contentions: first, that territorial regula-
tion is unfeasible because individuals can easily avoid the sovereign's regu-
latory 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
388
See Perritt, supra note 374, at 578-79 (questioning whether minority rights will be
protected by ICANN). ICANN, for example, has faced particularly searching questions on
these issues. See, e.g., Geist, Fair.com?, supra note 147, at 912 (finding that six panelists in
ICANN arbitration sided with the complaining party in ninety-five percent of cases); Froom-
kin, Wrong Turn in Cyberspace, supra note 147, at 24 (arguing that ICANN "give[s] over-
whelming weight to corporate voices" in its internal structure); see also David McGuire,
Internet Governance Group Approves Massive Reform Plan, NEWSBYTES, June 28, 2002,
at http://www.computeruser.com/news/02/06/29/
news1.html (reporting on controversial ICANN plan to eliminate "a mechanism under which
rank-and-file users would have been permitted to elect a portion of the ICANN board, an ap-
proach favored by many public interest groups").
389
See, e.g., CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY
OF THE CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787, at 69-74 (1966) (describ-
ing the concern of the delegates to the Constitutional Convention that the method for electing
members to Congress protect minority rights); Lindseth, supra note 350, at 633-35 (discussing
the European Community's "democratic deficit").
390
Jack L. Goldsmith, The Internet and the Abiding Significance of Territorial Sover-
eignty, 5 IND. J. GLOBAL LEGAL STUD. 475, 475 (1998) [hereinafter Goldsmith, Territorial
Sovereignty]; see also Jack L. Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV. 1199,
1200-01 (1998) [hereinafter Goldsmith, Against Cyberanarchy] (asserting that territorially
based regulation of cyberspace is "feasible and legitimate from the perspective of jurisdic-
tion"); Jack Goldsmith, The Internet, Conflicts of Regulation, and International Harmoniza-
tion, in GOVERNANCE OF GLOBAL NETWORKS IN THE LIGHT OF DIFFERING LOCAL VALUES
197, 197-99 (Christoph Engel & Kenneth H. Keller eds., 2000) [hereinafter Goldsmith, Con-
flicts of Regulation] (arguing that the local effects of Internet activity render local regulation
legitimate). Others share Goldsmith's view. See, e.g., Josef H. Sommer, Against Cyberlaw,
15 BERKELEY TECH. L.J. 1145, 1205-08 (2000) (arguing that the U.S. can regulate the Inter-
net, but that there is a lack of "jurisdictional predictability" when one is uncertain of whether
she is availing herself of the forum).
2002] GLOBALIZATION OF JURISDICTION 401
prescriptive jurisdiction and its enforcement jurisdiction. According to
Goldsmith, "prescriptive jurisdiction is a country's power to apply its laws
to particular transactions."391
The question of whether or not that regulation
will actually be enforced, however, depends upon the country's ability to
induce or compel compliance with the law through its enforcement jurisdic-
tion.392
Thus, Goldsmith argues, just because individuals may try to evade a na-
tion'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 effi-
cacious 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."393
Moreover, even if the content provider has no local presence or prop-
erty, the sovereign will be able to regulate harms indirectly. For example,
the sovereign may take action 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 objec-
tionable content.394
In either scenario, the local jurisdiction turns out to
have more extraterritorial power than originally envisioned.395
Likewise, Goldsmith argues that there is nothing inherently illegitimate
about a local regulation that happens to affect behavior extraterritorially. As
he says, "It is uncontroversial that pollution emitted in State A that wafts
into State B can be regulated in State B."396
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 simul-
taneously and unknowingly--Goldsmith argues that geographical filtering
391
Goldsmith, Conflicts of Regulation, supra note 390, at 198.
392
Id.
393
Goldsmith, Territorial Sovereignty, supra note 390, at 479.
394
For example, a lawsuit filed in France seeks an order requiring French ISPs to block
access to an American portal that allegedly hosts "hate Web sites." See Ned Stafford, French
ISPs Fight to Avoid Blocking Nazi, Racist Content, NEWSBYTES, Sept. 4, 2001, at
http://www.infowar.com/law/01/law_090501a_j.shtml (detailing the French case).
395
See Goldsmith, Territorial Sovereignty, supra note 390, at 481-82 (enumerating vari-
ous regulatory means employed to combat local harms caused by extraterritorial content pro-
viders); Goldsmith, Conflicts of Regulation, supra note 390, at 199 (arguing that a country can
indirectly regulate offshore content by regulating other actions and entities within its borders).
396
Goldsmith, Territorial Sovereignty, supra note 390, at 484.
402 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
technology will allow content providers to ensure that material deemed ob-
jectionable in a jurisdiction never reaches that jurisdiction.397
Moreover,
according to Goldsmith, as long as the content provider never sets foot in
the jurisdiction, enforcement power will be lacking.398
Goldsmith's analysis, however, is subject to several normative objec-
tions. First, Goldsmith's conclusion that the Internet poses no new jurisdic-
tional issues is premised on the idea that extraterritorial regulation has ex-
isted for a long time--which is, of course, true. But the very idea that
Goldsmith takes to be settled and uncontroversial---that transactions "can
legitimately be regulated [by] the jurisdictions where significant effects of
the transaction are felt"399
---was not always so. To the contrary, as Gold-
smith himself acknowledges, prior to the twentieth century it was "settled"
law that a state had no power to regulate beyond its borders at all.400
More-
over, as we shall see later in this Article, the shift in jurisdictional law to
give states limited extraterritorial reach was itself at least partly a response
to changes in communications and transportation technology.401
In short,
what we take to be "settled" law shifts over time based on societal changes.
Thus, it is not sufficient simply to rely on what seems to be settled law at
this particular moment in history without at least considering the possibility
that the rise of online interaction and the increasing globalization of trans-
portation and commerce might require new shifts in those settled jurisdic-
tional rules.402
397
See id. (noting that "content providers can take steps-­such as conditioning access to
content on presentation of geographic identification­-to control content flow geographi-
cally"); see also Goldsmith, Conflicts of Regulation, supra note 390, at 201-02 ("Content flow
can today be regulated geographically though a variety of means ranging from conditioning
access to content on geographical identification, to centralized filtered servers, to mandated
end-user filtering, to the imposition of severe penalties for uploading or downloading certain
information.").
398
Goldsmith, Territorial Sovereignty, supra note 390, 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.").
399
Goldsmith, Against Cyberanarchy, supra note 390, at 1208.
400
Id. at 1206-08 (discussing the repudiation of "hermetic territorialism" in the twentieth
century).
401
See infra text accompanying notes 483-94 (examining the relationship between
changes in American social and political life and shifts in jurisdictional rules). This same shift
has occurred in international law. See Goldsmith, Against Cyberanarchy, supra note 390, at
1209 (noting that "it seems clear that customary international law . . . permits a nation to apply
its law to extraterritorial behavior" when such behavior has "substantial local effects").
402
See David G. Post, Against "Against Cyberanarchy," supra note 39, at 10 (noting
that people "one hundred, or even 50, years ago might have made an argument very much like
Goldsmith's," pointing to what seemed at the time to be settled law to argue that "rail trans-
port, or the telephone, or radio broadcasting, would (and should) have no effect on our analy-
sis of jurisdictional problems").
2002] GLOBALIZATION OF JURISDICTION 403
For example, even if we have come to accept the reality of extraterrito-
rial regulation, 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 re-
gard to the Internet. For example, it may be prohibitively expensive for a
small business or individual to filter out users from selected jurisdictions.
One might not want the threat of extraterritorial regulation to curtail such
actors from posting content.
Goldsmith's response to this objection might point out that the small
player is protected by the fact that the distant jurisdiction will have no
means of enforcing any judgment. Such an argument, however, assumes
that this individual not only has no presence or assets in the foreign jurisdic-
tion, but will never have such a presence or maintain such assets. This re-
gime 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.
Second, Goldsmith assumes that a jurisdiction can pursue claims
against intermediaries as a way of enforcing regulations against distant par-
ties, 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 causes them to spend a tremendous amount of money at-
tempting to intercept the flow of messages in order to investigate them. In-
deed, this is precisely why U.S. Internet Service Providers have lobbied for
and received immunity for defamatory e-mail and websites carried on their
services.403
Goldsmith appears to recognize this problem. He acknowledges that
the need to filter information to conform with the law of multiple jurisdic-
tions "places [an] enormous burden on content providers that might signifi-
403
See 47 U.S.C. § 230(c)(1) (Supp. V 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. Am. Online, Inc., 129 F.3d 327,
330 (4th Cir. 1997) (concluding that Congress enacted this provision because of the "threat
that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet me-
dium"). But see Susan Freiwald, Comparative Institutional Analysis in Cyberspace: The
Case of Intermediary Liability for Defamation, 14 HARV. J.L. & TECH. 569, 631-43 (2001)
(arguing that courts are institutionally better positioned to make liability decisions regarding
Internet Service Providers and that the blanket immunity provided by section 230 therefore is
misguided).
404 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
cantly curtail Internet activity."404
But, he cheerfully responds, "there is
nothing sacrosanct about Internet speed, or about a foreign content pro-
vider's right to send information everywhere in the world with impunity."405
Thus, Goldsmith's analysis embeds the normative assumption that the dis-
tinctive benefits of the Internet should be jettisoned so that the existing ju-
risdictional framework can be preserved. Many will not share that norma-
tive viewpoint, however, and Goldsmith's analysis offers them little
consolation.
Finally, despite Goldsmith's claims that these extraterritorial enforce-
ment problems are exaggerated and mostly hypothetical, many of the chal-
lenges discussed in this Article belie that assertion. Indeed, Yahoo.com ap-
pears to have capitulated to the French court order regarding Nazi
memorabilia despite having no presence in France,406
and the very real tax
dilemmas discussed previously407
indicate that the jurisdictional problems
raised by online activity are not at all hypothetical. In addition, the prob-
lems of extraterritorial regulatory evasion will likely persist as well. For
example, in a recent case involving the Digital Millennium Copyright
Act,408
an American defendant was enjoined from posting information that
allowed circumvention of the encrypted code on digital video disks.409
Such
an order, however, will necessarily have only limited power over non-U.S.
sites, and the defendant immediately posted links to those sites.410
Gold-
smith's assurance that this is not a problem may not satisfy those seeking to
regulate online activity, be they governments or private parties.
404
Goldsmith, Territorial Sovereignty, supra note 390, at 485.
405
Id.
406
See supra Part I.D (discussing the French court's injunction against Yahoo!). While
Yahoo! had a French subsidiary, the existence of the subsidiary would not usually be consid-
ered sufficient to bring suit against the parent corporation. See Phillip I. Blumberg, Asserting
Human Rights Against Multinational Corporations Under United States Law: Conceptual
and Procedural Problems, 50 AM. J. COMP. L. 493, 495 (2002) (noting that parent corpora-
tions are generally deemed to be "liable only for conduct traceable to their own officers, direc-
tors, and employees," not those of their foreign subsidiaries). For further discussion of this
aspect of the Yahoo! case, see infra Part V.B.2.
407
Supra Part I.C.
408
Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sec-
tions of 17 U.S.C.)
409
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 441-42, 459-60 (2d Cir. 2001).
410
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.'").
2002] GLOBALIZATION OF JURISDICTION 405
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 es-
tablished legal doctrine to new contexts. Thus, we can simply leave it to the
common law process411
to develop 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 tried to craft
useful solutions to questions of jurisdiction and choice of law by adapting
established legal frameworks. Nevertheless, even a brief glimpse at evolv-
ing U.S. case law reveals that the fit between traditional doctrines and new
contexts is imperfect at best.
1. Personal Jurisdiction
In the area of personal jurisdiction,412
U.S. courts have, since 1945, at-
tempted to apply the Supreme Court's flexible due process standard first ar-
ticulated in International Shoe Co. v. Washington.413
Thus, courts ask
whether the defendant had sufficient contacts with the relevant state such
that jurisdiction is consistent with "traditional notions of fair play and sub-
stantial justice."414
As transportation and interstate commerce have contin-
ued 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 ju-
risdiction.415
411
This can even be said for civil law countries, where judges must often engage in
"gap-filling" and interpretation. See Peter L. Strauss, The Common Law and Statutes, 70 U.
COLO. L. REV. 225, 236 (1999) (arguing that "`civil law judging is less alien to [the common
law] tradition than is usually supposed . . . [because c]odes can be notoriously vague'" and are
often sufficiently general that they require extensive judicial elaboration (quoting E-mail from
Peter Lindseth, Associate Director, European Legal Studies Center, Columbia University, to
Peter L. Strauss, Betts Professor of Law, Columbia University (Apr. 14, 1998))).
412
Some have argued that the adjudicatory jurisdiction question is not as difficult a chal-
lenge as the question of how a judgment will be enforced. See, e.g., Michael A. 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 INT'L 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 Part V.C.
413
326 U.S. 310 (1945).
414
Id. at 316 (internal quotation marks omitted).
415
Indeed, the Supreme Court issued at least twelve major personal jurisdiction deci-
406 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
By 1995, questions about personal jurisdiction based on Internet con-
tacts 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.,416
a fed-
eral district court in Connecticut ruled that it had proper jurisdiction over the
defendant, a Massachusetts-based provider of computer technology, even
though the company, Instruction Set, maintained no offices in Connecticut
and did not conduct regular business there. The court ruled that the defen-
dant's promotional website, because it was accessible in Connecticut, sup-
ported the exercise of jurisdiction in the state.417
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
sions between 1976 and 1990 alone. See Burnham v. Superior Court, 495 U.S. 604, 619
(1990) (Scalia, J., joined by Rehnquist, C.J., White, Kennedy, JJ.) (ruling that personal juris-
diction existed when a nonresident defendant was served with process while temporarily visit-
ing the forum state for reasons unrelated to the suit); Omni Capital Int'l, Ltd. v. Rudolf Wolff
& Co., 484 U.S. 97, 103-11 (1987) (holding that personal jurisdiction did not exist because
the forum state's long-arm statute did not permit service of process on the defendant, an alien
corporation); Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 108-16 (1987) (divid-
ing on the question of whether the action of placing a product in the "stream of commerce"
automatically subjects a party to personal jurisdiction); Phillips Petroleum Co. v. Shutts, 472
U.S. 797, 806-11 (1985) (determining that out-of-state class members can be subject to per-
sonal jurisdiction despite not having minimum contacts with the forum state); Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 471-76 (1985) (holding that personal jurisdiction can be
asserted based on contractual relations with a forum state even without physical contact so
long as the out-of-state party had fair notice that she might be subject to suit there); Helicop-
teros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 413-16 (1984) (ruling that contacts
unrelated to the cause of action are insufficient to form a basis for personal jurisdiction unless
those contacts are "continuous and systematic"); Calder v. Jones, 465 U.S. 783, 788-89 (1984)
(holding that a court may exercise personal jurisdiction over a nonresident party that commits
a tortious act that it knows will have an effect in the forum state); Keeton v. Hustler Maga-
zine, Inc., 465 U.S. 770, 779-80 (1984) (ruling that a publisher's regular circulation of maga-
zines in the forum state was sufficient to permit that state to assert jurisdiction); Ins. Corp. of
Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707-09 (1982) (determining that the
"minimum contacts" standard for personal jurisdiction is met when a party fails to comply
with court-ordered discovery); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
295-98 (1980) (holding that personal jurisdiction could not be exercised over a party who sold
a product that was later transported by a consumer into the forum state when the party did not
serve, directly or indirectly, the market in that forum state); Kulko v. Superior Court, 436 U.S.
84, 94 (1978) (ruling that a state could not exercise personal jurisdiction over a nonresident
merely because he acquiesced in his daughter's desire to live with her mother in the forum
state); Shaffer v. Heitner, 433 U.S. 186, 207-12 (1977) (holding that the "minimum contacts"
standard articulated in International Shoe must be applied to quasi in rem actions).
416
937 F. Supp. 161 (D. Conn. 1996).
417
Id. at 163-65.
2002] GLOBALIZATION OF JURISDICTION 407
doing business within Connecticut."418
Similarly, other courts have at times
indicated that the posting of a website accessible within a state, even with-
out any further contacts, might be sufficient to justify jurisdiction.419
Although the U.S. Supreme Court has yet to address the issue of per-
sonal jurisdiction based on Internet contacts, most lower courts, perhaps
concerned over the broad implications of cases like Instruction Set, have at-
tempted to craft a more moderate rule. The most influential case thus far
has been Zippo Manufacturing Co. v. Zippo Dot Com, Inc.420
There, the
district court applied a "sliding scale" to Internet contacts in order to deter-
mine the "nature and quality of commercial activity that an entity conducts
over the Internet."421
On one end of the court's spectrum was a "passive"
website, where a defendant has simply posted information on the Internet
"available to those who are interested."422
According to the court, such a
site, absent additional contact with the forum state or its citizens, would not
be enough to support jurisdiction.423
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 knowing and re-
peated transmission of computer files over the Internet."424
The existence of
418
Id. at 165.
419
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 defendant's
web server was located in California, the court noted that the disputed website was "continu-
ally 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 Inter-
net users, knowing that such information will be transmitted globally. Thus, Cyber-
Gold's 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 juris-
diction over defendant.
Id. at 1333. Similarly, in Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn.
Ct. App. 1997), the Minnesota Court of Appeals ruled that the state Attorney General's office
could sue an online gambling service in Minnesota even though the service was based outside
of the state. Relying on Instruction Set 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 Min-
nesota, accessed appellants' websites," id. at 718. See also Telco Communications v. An Ap-
ple a Day, 977 F. Supp. 404, 407 (E.D. Va. 1997) (holding that 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 pos-
sible for a . . . resident [of the forum] to gain access to it at any time since it was first posted").
420
952 F. Supp. 1119 (W.D. Pa. 1997).
421
Id. at 1124.
422
Id.
423
Id.
424
Id.
408 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
an active site would be sufficient to establish jurisdiction anywhere the site
is accessed.425
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."426
Thus, Zippo attempted to
chart a course for analyzing minimum contacts in cyberspace.
Although other courts quickly latched onto the Zippo framework,427
ul-
425
Id.
426
Id.
427
For a sampling of decisions utilizing Zippo, see Soma Med. Int'l v. Standard Char-
tered Bank, 196 F.3d 1292, 1296-97 (10th Cir. 1999); Nida Corp. v. Nida, 118 F. Supp. 2d
1223, 1229-30 (M.D. Fla. 2000); Biometics, LLC v. New Womyn, Inc., 112 F. Supp. 2d 869,
873 (E.D. Mo. 2000); Search Force Inc. v. DataForce Int'l, Inc., 112 F. Supp. 2d 771, 776-77
(S.D. Ind. 2000); Tech Heads, Inc. v. Desktop Serv. Ctr., Inc., 105 F. Supp. 2d 1142, 1149 (D.
Or. 2000); McRae's, Inc. v. Hussain, 105 F. Supp. 2d 594, 599-600 (S.D. Miss. 2000); Stan-
dard Knitting, Ltd. v. Outside Design, Inc., No. 00-2288, 2000 U.S. Dist. LEXIS 8633, at *5-6
(E.D. Pa. June 21, 2000); Citigroup, Inc. v. City Holding Co., 97 F. Supp. 2d 549, 565-66
(S.D.N.Y. 2000); Am. Eyewear, Inc. v. Peeper's Sunglasses & Accessories, Inc., 106 F. Supp.
2d 895, 900-01 (N.D. Tex. 2000); Berthold Types Ltd. v. European Mikrograf Corp., 102 F.
Supp. 2d 928, 932-34 (N.D. Ill. 2000); Lofton v. Turbine Design, Inc., 100 F. Supp. 2d 404,
410 (N.D. Miss. 2000); Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714, 717 (E.D. Va.
2000); Ameritech Servs., Inc. v. SCA Promotions, Inc., No. 99C4160, 2000 U.S. Dist. LEXIS
3067, at *13 (N.D. Ill. Mar. 6, 2000); Butler v. Beer Across Am., 83 F. Supp. 2d 1261, 1268
(N.D. Ala. 2000); Online Partners.Com, Inc. v. Atlanticnet Media Corp., No. Civ. A. c98-
4146SIENE, 2000 U.S. Dist. LEXIS 783, at *5 (N.D. Cal. Jan. 20, 2000); Quokka Sports,
Inc., v. Cup Int'l Ltd., 99 F. Supp. 2d 1105, 1111 (N.D. Cal. 1999); J.B. Oxford Holdings, Inc.
v. Net Trade, Inc., 76 F. Supp. 2d 1363, 1367 (S.D. Fla. 1999); Colt Studio, Inc. v. Badpuppy
Enter., 75 F. Supp. 2d 1104, 1108-09 (C.D. Cal. 1999); Harbuck v. Aramco, Inc., No. CIV. A.
99-1971, 1999 U.S. Dist. LEXIS 16892, at *17 (E.D. Pa. Oct. 21, 1999); CIVIX-DDI LLC v.
Microsoft Corp., 52 U.S.P.Q.2d (BNA) 1501, 1504-05 (D. Colo., 1999); Brown v. Geha-
Werke GmbH, 69 F. Supp. 2d 770, 777-78 (D.S.C. 1999); Hasbro, Inc. v. Clue Computing,
Inc., 66 F. Supp. 2d 117, 128 (D. Mass. 1999), aff'd, 232 F.3d 1 (1st Cir. 2000); Hurley v.
Cancun Playa Oasis Int'l Hotels, No. Civ.A. 99-574, 1999 U.S. Dist. LEXIS 13716, at *8
(E.D. Pa. Aug. 31, 1999); Coastal Video Communications, Corp. v. Staywell Corp., 59 F.
Supp. 2d 562, 570 (E.D. Va. 1999); Decker v. Circus Circus Hotel, 49 F. Supp. 2d 743, 747-
48 (D.N.J. 1999); Int'l Star Registry of Illinois v. Bowman-Haight Ventures, Inc., No. 98 C
6823, 1999 U.S. Dist. LEXIS 7009, at *11-16 (N.D. Ill. May 6, 1999); Resnick v. Manfredy,
52 F. Supp. 2d 462, 467 (E.D. Pa. 1999), aff'd in part, rev'd in part, 238 F.3d 248 (3d Cir.
2001); Barrett v. Catacombs Press, 44 F. Supp. 2d 717, 724-728 (E.D. Pa. 1999); Fix My PC,
L.L.C. v. N.F.N. Assocs., 48 F. Supp. 2d 640, 643 (N.D. Tex 1999); Origin Instruments Corp.
v. Adaptive Computer Sys., Inc., No. CIV.A. 3:97-CV-2595-L, 1999 U.S. Dist. LEXIS 1451,
at *8 (N.D. Tex. Feb. 3, 1999); F. McConnell & Sons, Inc. v. Target Data Sys., Inc., 84 F.
Supp. 2d 961, 971 (N.D. Ind. 1999); ESAB Group, Inc. v. Centricut, LLC, 34 F. Supp. 2d
323, 330 (D.S.C. 1999); LFG, LLC v. Zapata Corp., 78 F. Supp. 2d 731, 736 (N.D. Ill. 1999);
Grutkowski v. Steamboat Lake Guides & Outfitters, Inc., No. Civ.A. 98-1453, 1998 U.S. Dist.
LEXIS 20255, at *10 (E.D. Pa. Dec. 28, 1998); K.C.P.L., Inc. v. Nash, 49 U.S.P.Q.2d (BNA)
1584, 1588-89 (S.D.N.Y. 1998); Atlantech Distribution, Inc. v. Credit Gen. Ins. Co., 30 F.
Supp. 2d 534, 537 (D. Md. 1998); Patriot Sys., Inc. v. C-Cubed Corp., 21 F. Supp. 2d 1318,
2002] GLOBALIZATION OF JURISDICTION 409
timately 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 arti-
cles 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.428
Ultimately, most sites probably will fall
into the middle ground, and "examining the level of interactivity and com-
mercial nature of the exchange of information"429
is unlikely to yield pre-
dictable or consistent results. Moreover, some sites that seem passive may
sell advertising based on the number of "hits" they receive or may collect
and market data about the user,430
both of which may seem to render the site
more active. Finally, few large organizations or corporations will spend the
money necessary431
to create a sophisticated website without including
some mechanism to earn money back from the site. If all such sites are
1324 (D. Utah 1998); Vitullo v. Velocity Powerboats, Inc., No. 97 C 8745, 1998 U.S. Dist.
LEXIS 7120, at *15 (N.D. Ill. Apr. 24, 1998); Blumenthal v. Drudge, 992 F. Supp. 44, 55-56
(D.D.C. 1998); Blackburn v. Walker Oriental Rug Galleries, Inc., 999 F. Supp. 636, 638 (E.D.
Pa. 1998); Tel. Audio Prods., Inc. v. Smith, Civil Action No. 3:97-CV-0863-P, 1998 U.S.
Dist. LEXIS 4101, at *9 n.5 (N.D. Tex. Mar. 26, 1998); Thompson v. Handa-Lopez, Inc., 998
F. Supp. 738, 742-43 (W.D. Tex. 1998); Mieczkowski v. Masco Corp., 997 F. Supp. 782, 786-
87 (E.D. Tex. 1998); Mallinckrodt Med., Inc. v. Sonus Pharm., Inc., 989 F. Supp. 265, 273
(D.D.C. 1998); Agar Corp. Inc. v. Multi-Fluid Inc., Niv. A. No. 95-5105, 1997 U.S. Dist.
LEXIS 17121, at *7 (S.D. Tex. June 25, 1997); Smith v. Hobby Lobby Stores, Inc., 968 F.
Supp. 1356, 1365 (W.D. Ark. 1997); Resuscitation Techs., Inc. v. Cont'l Health Care Corp.,
1997 U.S. Dist. LEXIS 3523, at *11 (S.D. Ind. Mar. 24, 1997); Jewish Def. Org., Inc. v. Supe-
rior Court, 85 Cal. Rptr. 2d 611, 621 (Cal. Ct. App. 1999).
428
As Geist states:
When the test was developed in 1997, an active website 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 with improved technology. In
fact, it can be credibly argued that . . . websites must constantly re-evaluate their po-
sitions on the passive versus active spectrum as web technology changes.
Geist supra note 412, at 1379-80.
429
Zippo Dot Com, 952 F. Supp. at 1124.
430
See Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN. L. REV.
1193, 1226-29 (1998) (discussing the use of "cookies" to track website users and the selling of
that information to advertising companies).
431
See David Legard, Average Cost to Build E-Commerce Site: $1 Million, INDUS.
STANDARD, May 31, 1999, http://www.thestandard.com/article/0,1902,4731,00.html.
410 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
deemed interactive under the Zippo framework, however, they will all sub-
ject the site owner to universal jurisdiction, returning us to a solution like
the one reached in Instruction Set.
Perhaps because of these difficulties, courts already appear to be shift-
ing away from the Zippo approach (even while sometimes continuing to cite
Zippo itself) toward a test based on the effect of the activity within the juris-
diction.432
This test derives from the U.S. Supreme Court's 1984 decision
in Calder v. Jones,433
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 juris-
diction over the case.434
Thus, under Calder's "effects test," personal juris-
diction 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."435
Courts have applied the effects test not only to Internet libel cases,436
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 ar-
gued that jurisdiction was appropriate in Texas because the defendant
owned an undisputedly interactive website that was accessible in Texas.437
432
For a sampling of cases that appear to turn on an effects analysis, see Panavision
Int'l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998); Neogen Corp. v. Neo Gen Screening,
Inc., 109 F. Supp. 2d 724 (W.D. Mich. 2000), rev'd, 282 F.3d 883 (6th Cir. 2002); People So-
lutions, Inc. v. People Solutions, Inc., No. 3:99-CV-2339-L, 2000 WL 1030619 (N.D. Tex.
July 25, 2000); Winfield Collection, Ltd. v. McCauley, 105 F. Supp. 2d 746 (E.D. Mich.
2000); Search Force v. DataForce Int'l, 112 F. Supp. 2d 771 (S.D. Ind. 2000); Euromarket
Designs, Inc. v. Crate & Barrel, Ltd., 96 F. Supp. 2d 824 (N.D. Ill. 2000); Uncle Sam's Safari
Outfitters, Inc. v. Uncle Sam's Army Navy Outfitters--Manhattan, Inc., 96 F. Supp. 2d 919
(E.D. Mo. 2000); Nissan Motor Co. v. Nissan Computer Corp., 89 F. Supp. 2d 1154 (C.D.
Cal. 2000), aff'd, 246 F.3d 675 (9th Cir. 2000); Neato, Inc. v. Great Gizmos, No. 3:99CV958,
2000 WL 305949 (D. Conn. Feb. 24, 2000); Rothschild Berry Farm v. Serendipity Group
LLC, 84 F. Supp. 2d 904 (S.D. Ohio 1999); Bochan v. La Fontaine, 68 F. Supp. 2d 701 (E.D.
Va. 1999); Millennium Enters., Inc. v. Millennium Music, L.P., 33 F. Supp. 2d 907 (D. Or.
1999); Blakey v. Cont'l Airlines, Inc., 751 A.2d 538 (N.J. 2000).
433
465 U.S. 783 (1984).
434
Id. at 789-90.
435
Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1486 (9th Cir. 1993).
436
See, e.g., Planet Beach Franchising Corp. v. C3Ubit, Inc., No. Civ. A. 02-1859, 2002
WL 1870007, at *3 (E.D. La. Aug. 12, 2002) (using the effects test to justify assertion of per-
sonal jurisdiction over an out-of-state defendant based on an allegedly defamatory article
posted on defendant's website); Blakey, 751 A.2d 538 (using the effects test to determine that
jurisdiction existed over nonresident defendants who allegedly posted defamatory messages
on the electronic bulletin board of their New Jersey-based employer).
437
People Solutions, Inc., 2000 WL 1030619 at *3-4.
2002] GLOBALIZATION OF JURISDICTION 411
Although the court acknowledged the interactivity of the site,438
it refused to
assert jurisdiction absent evidence that residents of Texas had actually pur-
chased from the site.439
Likewise, in a case alleging copyright infringement in the design of
craft patterns, a Michigan plaintiff sued a Texas defendant in Michigan.440
According to the plaintiff, the Michigan court could properly exercise juris-
diction because the defendant both maintained an interactive website acces-
sible to Michigan residents and, on two occasions, had sold patterns to
Michigan residents.441
Nevertheless, the court ruled that jurisdiction was
not proper in Michigan. Rejecting the Zippo framework, the court refused
to accept the idea "that the mere act of maintaining a website that includes
interactive features ipso facto establishes personal jurisdiction over the
sponsor of that website anywhere in the United States."442
Furthermore, 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
no say over where the products would be purchased.443
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 defendant's activities may cause in a jurisdiction, courts
may base jurisdictional decisions on whether a defendant deliberately tar-
gets 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 in-
tentions 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
analysis, the source of considerable uncertainty since Internet-based activity
can ordinarily be said to create some effects in most jurisdictions.
444
At least one court of appeals (the Ninth Circuit) 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 defen-
dant knows to be a resident of the forum state."445
Likewise, OECD Con-
438
Id. at *3.
439
Id. at *4.
440
Winfield Collection, 105 F. Supp. 2d at 747.
441
Id. at 748.
442
Id. at 751.
443
See id. (stating that the results of the auction sale, over which defendant had little
control, did not create personal jurisdiction).
444
Geist, supra note 412, at 1345-46; see also Perritt, supra note 374, at 573 ("The con-
cept of targeting is the best solution to the theoretical challenge presented by difficulties in
localizing conduct in Internet markets.").
445
Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000);
412 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
sumer Protection Guidelines,446
Securities and Exchange Commission regu-
lations on Internet-based offerings,447
the American Bar Association Global
Cyberspace Jurisdiction Project's Report on Global Jurisdiction Issues Cre-
ated by the Internet,448
and the Hague Conference on Private International
Law's Draft Convention on Jurisdiction and Foreign Judgments449
all in-
clude references to targeting as a basis for the exercise of jurisdiction.
Nevertheless, targeting too ultimately may prove to be an unstable test.
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 juris-
diction. This will not be an easy task. For example, the American Bar As-
sociation Internet Jurisdiction Project, a global study on Internet jurisdiction
released in 2000, referred to the language of the site as one potentially sig-
nificant way of determining whether a site operator has targeted a particular
jurisdiction.450
With the development of new language translation capabili-
ties, however, website owners may soon be able to create their sites in any
language they wish, knowing that users will automatically be able to view
see also Am. Info. Corp. v. Am. Infometrics, Inc., 139 F. Supp. 2d 696, 700 (D. Md. 2001)
(ruling that "[a] company's sales activities focusing generally on customers located through-
out the United States and Canada without focusing on and targeting the forum state do not
yield personal jurisdiction" (internal quotation omitted)).
446
See ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT,
GUIDELINES FOR CONSUMER PROTECTION IN THE CONTEXT OF ELECTRONIC COMMERCE 14
(2000) ("Businesses should take into account the global nature of electronic commerce and,
wherever possible, should consider various regulatory characteristics of the markets they tar-
get."), at http://www.oecd.org/pdf/M00000000/M00000363.pdf.
447
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 precaution-
ary 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.
Interpretation: Statement of the Commission Regarding Use of Internet Web Sites to Offer
Securities, Solicit Securities Transactions or Advertise Investment Services Offshore, Securi-
ties and Exchange Commission, http://www.sec.gov/rules/interp/33-7516.htm (Mar. 23, 1998)
(internal citations omitted); see also Interpretation: Use of Electronic Media, Securities and
Exchange Commission, (May 4, 2000) (providing guidance in applying federal securities law
to electronic media), http://www.sec.gov/rules/interp/34-42728.htm.
448
American Bar Association Global Cyberspace Jurisdiction Project, A Report on
Global Jurisdiction Issues Created by the Internet, 55 BUS. LAW. 1801 (2000) [hereinafter
ABA, Global Jurisdiction].
449
Hague Conference on Private International Law, supra note 321, at art. 7, version
0.4a ("[A]ctivity shall not be regarded as being directed to a State if the other party demon-
strates that it took reasonable steps to avoid concluding contracts with consumers habitually
resident in the State.").
450
ABA, Global Jurisdiction, supra note 448, at 1923-24.
2002] GLOBALIZATION OF JURISDICTION 413
the site in the user's chosen language.451
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."452
Thus, although the adaptation process continues, it is un-
clear whether the results will be satisfying either conceptually or practically.
2. Choice of Law
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 and the broader principle of national treatment have long estab-
lished a relatively stable set of choice-of-law rules based upon territorial-
ity.453
Under this regime, courts are asked to apply the law of the place
where the copying or other allegedly infringing act occurred. In a world of
digital technology and global commerce, however, the assumption that we
can necessarily fix a place of origin or a place of infringement has been un-
dermined.454
In response, courts have been forced to adapt. For example, in Itar-
Tass Russian News Agency v. Russian Kurier, Inc.,455
several Russian-
language newspapers located in Russia sued a U.S. corporation that was tak-
451
See Geist, supra note 412, at 1384 n.224 (describing a new automatic translation ser-
vice offered by the search engine Google); see also http://www.google.com/
machine_translation.html (last visited Nov. 20, 2001) (stating that pages published in Italian,
French, Spanish, German, or Portuguese can be translated into English).
452
Geist, supra note 412, at 1384.
453
Berne Convention, supra note 320, at art. 5(1), 1161 U.N.T.S. at 35 ("Authors shall
enjoy . . . the rights which their respective laws do now or may hereafter grant to their nation-
als, as well as the rights specially granted by this Convention."); see also id. at art. 5(2), 1161
U.N.T.S. at 35 ("[T]he 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 ter-
ritoriality." 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) as creating a rule of lex fori be-
cause the forum can be seen as "the country where protection is claimed." Nevertheless, the
usual reading of the provision is that it refers to the country where the infringement is alleged
to have occurred. See Graeme W. Austin, Domestic Laws and Foreign Rights: Choice of
Law in Transnational Copyright Infringement Litigation, 23 COLUM.-VLA J.L. & ARTS 1, 24-
25 (1999) (noting that, at least until recently, "the weight of opinion" favored this interpreta-
tion); see also Dinwoodie, supra note 323, at 533 n.196 (citing Austin and stating that the ac-
cepted reading of article 5(2) is that it refers to the country where infringement is alleged to
have occurred).
454
See e.g., Dinwoodie, supra note 323, at 535 ("The place where an act of alleged in-
fringement `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.").
455
153 F.3d 82 (2d Cir. 1998).
414 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
ing articles from those newspapers, rearranging them, and creating a Rus-
sian-language newspaper for U.S. distribution.456
The Second Circuit de-
clined to apply exclusively the territorial place of infringement rule derived
from Article 5(1) of the Berne Convention.457
Rather, the court developed a
choice-of-law rule as a matter of federal common law. Looking to the Re-
statement (Second) of Conflicts of Law, under which courts use the law of
the place with the most significant relationship to the parties and the trans-
action,458
the Second Circuit applied Russian copyright law to the question
of who holds the copyright,459
but applied American law to the infringement
question.460
Nevertheless, even the more flexible analysis of the Second Restate-
ment may ultimately be unsatisfying in complex cases. Indeed, commenta-
tors have often criticized the Second Restatement's "most significant rela-
tionship" test because it tends to devolve into an unguided list of
governmental interests with a conclusory decision appended.461
Moreover,
such a list will almost always include the forum jurisdiction, particularly in
the digital world where publication may occur simultaneously in multiple
countries.462
Thus, given that courts tend to prefer applying their own
456
Id.
457
Id. at 89-90.
458
See RESTATEMENT (SECOND) OF CONFLICTS OF LAWS §§ 6, 145, 222 (1971) (articu-
lating the "most significant relationship" test and listing the choice-of-law principles accord-
ing to which courts should determine the place with the most significant relationship to the
dispute).
459
See Itar-Tass, 153 F.3d at 90 (applying the "law of the state with `the most signifi-
cant relationship' to the property of the parties").
460
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 (stating "[t]o whatever extent lex loci delicti is to be considered only
one part of a broader `interest' approach, the United States law would still apply").
461
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 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 Us-
ing the Second Restatement, 16 ALASKA L. REV. 1, 19 (1999) (complaining that the lack of
guidance prevents any effective restraint on judicial decision making and results in conclusory
statements of the most relevant contacts).
462
Nat'l 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 pro-
gramming 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).
2002] GLOBALIZATION OF JURISDICTION 415
laws,463
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 ad-
vance which jurisdiction's copyright law may be applied to a given online
posting or transaction.464
To combat this uncertainty, some scholars have
proposed that courts use the law of the place where a website server is lo-
cated.465
Because websites may contain elements stored on multiple serv-
ers, however, locating a website may be difficult. Moreover, because serv-
ers can easily be located anywhere, such a scheme may result in a regulatory
race to the bottom.466
Thus, as with adjudicatory jurisdiction, the evolution
of choice-of-law rules in this new environment is 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
463
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).
464
See DAVID CAVERS, THE CHOICE OF LAW PROCESS 22-23 (1965) (arguing that a fo-
rum 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 the move
away from lex fori approaches among both commentators and courts). But see Robert A. Sed-
ler, Interest Analysis and Forum Preference in the Conflict of Laws: A Response to the `New
Critics,' 34 MERCER L. REV. 593, 595 (1982-1983) (arguing that the 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 (1983-1984) (arguing that forum preference
vindicates widely shared policy concerns because the interests of the plaintiff and the forum
are aligned).
465
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
defendant's domicile."). Interestingly, this proposal contrasts with the recent OECD tax rec-
ommendations, which take the position that a server is not sufficient to constitute presence in
a jurisdiction for tax purposes. Supra text accompanying note 66.
466
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 465, at 161 (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 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 prin-
cipal advantages are imperiled." Dinwoodie, supra note 323, at 540 (footnote omitted).
416 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
academics have devised or might devise to address the challenges of cyber-
space and increasing transborder interaction.467
More important, the pur-
pose 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" all of
their purported shortcomings. As a result, I will not return 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 I, 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 of-
ten at odds with one another), they all seem to revolve around either politi-
cal theory questions about when a judicial or administrative exercise of au-
thority 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 and Post)468
or the creation of
transnational norms (Dinwoodie and Perritt)469
do so based largely on litera-
ture from political philosophy and law.
There is more to the assertion of jurisdiction or the extraterritorial im-
position 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,
467
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 RICHARD D. POMP &
OLIVER OLDMAN, STATE AND LOCAL TAXATION 13-1 to 13-97 (4th ed. 2001); Arthur J.
Cockfield, Transforming the Internet into a Taxable Forum: A Case Study in E-Commerce
Taxation, 85 MINN. L. REV. 1171 (2001); Charles E. McClure, Jr., Taxation of Electronic
Commerce: Economic Objectives, Technological Constraints, and Tax Laws, 52 TAX L. REV.
269 (1997); Christopher J. Schafer, Federal Legislation Regarding Taxation of Internet Sales
Transactions, 16 BERKELEY TECH. L.J. 415 (2001); William V. Vetter, Preying on the Web:
Tax Collection in the Virtual World, 28 FLA. ST. U. L. REV. 649 (2001).
468
Supra Part II.A.
469
Supra Part II.G-H
2002] GLOBALIZATION OF JURISDICTION 417
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 four specific
aspects of jurisdiction that are often overlooked: the way in which jurisdic-
tional rules reflect and construct social conceptions of space, the role of ju-
risdictional rules in establishing community dominion over a transgressor,
the process by which the assertion of jurisdiction symbolically extends
community membership to those brought within its ambit, and the way in
which assertions of jurisdiction can open space for the articulation of norms
that challenge sovereign power. Part IV then deepens the inquiry by inter-
rogating 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 after displacing these assump-
tions will we be in a position to construct a more nuanced 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 structures and physical spaces has received less attention.470
Nevertheless, "[t]he production of space and place is both the medium and
the outcome of human agency and social relations."471
This cultural con-
struction of space includes the boundaries drawn between "public" and
"private" spaces; the decisions a community makes about land use and zon-
ing; 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."472
In addition, topological space, which consists of the formal boundary
lines we have chosen, is distinctively different from social space, which in-
470
For two notable exceptions within legal scholarship, see Terry S. Kogan, Geography
and Due Process: The Social Meaning of Adjudicative Jurisdiction, 22 RUTGERS L.J. 627
(1991); Richard T. Ford, Law's Territory (A History of Jurisdiction), 97 MICH. L. REV. 843
(1999). Kogan's work, although it predated the rise of cyberspace, specifically addressed the
social significance of adjudicative jurisdiction and so is particularly relevant here. My discus-
sion in this Section is heavily indebted to Kogan's argument.
471
ALLAN PRED, MAKING HISTORIES AND CONSTRUCTING HUMAN GEOGRAPHIES 10
(1990).
472
Id.
418 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
cludes the meanings given to space (both local and nonlocal), to the dis-
tances between delineated spaces, and to the time necessary to traverse
those distances.473
For example, a one-hundred-mile automobile trip may
seem like a greater journey to residents of the northeastern United States,
who are accustomed to relatively short distances between destinations, than
to residents of the West, where cities and towns are more dispersed. Simi-
larly, a one-thousand-mile trip carries a very different social meaning today,
in the age of relatively inexpensive air travel, than it did one hundred years
ago, even if the topological space remains the same.474
And of course
America's well-documented postwar demographic shift from city to suburb
is not merely a change of topology, but a politically and symbolically sig-
nificant cultural transformation.475
Moreover, the construction of legal spaces and the delineation of
boundaries is always embedded in broader social and political processes.476
"Legal categories are used to construct and differentiate material spaces
which, in turn, acquire a legal potency that has a direct bearing on those us-
ing and traversing such spaces."477
For example, in the history of European
conquest of Australia, the naming of particular spaces---rivers, mountains,
capes, bays, and so on---became a central point of political contest.478
The
Europeans believed that the aboriginals did not classify or name the land-
scape and transformed that purported "spatial deficiency" into a "legal defi-
ciency": if the aboriginals did not name their places, so the thinking went,
473
Kogan, supra note 470, at 634.
474
John Tomlinson describes this shift as follows:
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 six-
teenth century, by a huge, inhospitable and perilous tract of ocean. What connec-
tivity means is that we now experience this distance in different ways. We think of
such distant places as routinely accessible, either representationally through commu-
nications technology or the mass media, or physically, through the expenditure of a
relatively small amount of time (and, of course, of money) on a transatlantic flight.
So Mexico City is no longer meaningfully 5,500 miles from Madrid: it is eleven
hours' flying time away.
JOHN TOMLINSON, GLOBALIZATION AND CULTURE 4 (1999).
475
For the socio-political history of American suburbanization, see JOEL GARREAU,
EDGE CITY: LIFE ON THE NEW FRONTIER (1992); KENNETH T. JACKSON, CRABGRASS
FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES (1985).
476
See NICHOLAS K. BLOMLEY, LAW, SPACE, AND THE GEOGRAPHIES OF POWER, at xi
(1994) ("The legal representation of space must be seen as constituted by--and in turn consti-
tutive of---complex, normatively charged and often competing visions of social and political
life under law.").
477
Id. at 54.
478
See PAUL CARTER, THE ROAD TO BOTANY BAY: AN EXPLORATION OF LANDSCAPE
AND HISTORY (1988) (describing European exploration and subsequent naming of various
Australian geographical features).
2002] GLOBALIZATION OF JURISDICTION 419
their "grasp of it [was] so tenuous . . . [that] it was hardly a crime to take
possession of it."479
To take another example, Jeremy Waldron has ob-
served that increasing restrictions on the use of public spaces for activities
such as sleeping or washing denies homeless people any opportunity to per-
form those acts because there is neither a public nor a private space to do
so.480
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. As people develop attitudes
of familiarity toward the spaces in which they reside and conduct their daily
activities, they may also come to view unfamiliar people and locations as
frighteningly alien. Alternatively, the outside "other" can be seen as invit-
ing, friendly, and hospitable, or as mysterious, exotic, and romantic.481
There are a seemingly infinite variety of attitudes one may hold toward un-
familiar social spaces. Such attitudes are embedded in context and shaped
and influenced by manifold factors including politics, socio-economic rela-
tionships, and the extent of contact that one has with the "other."482
Thus, jurisdictional rules have never simply emerged from a utilitarian
calculus about the most efficient allocation of governing authority. Rather,
the exercise of jurisdiction has always been part of the way in which socie-
ties 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
community hold toward their geography, the physical spaces in which they
live, and the way in which they define the idea of community itself.
479
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).
480
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.").
481
As Stuart Hall has described:
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 en-
tire 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.
Stuart Hall, The Local and the Global: Globalization and Ethnicity, in CULTURE,
GLOBALIZATION AND THE WORLD-SYSTEM: CONTEMPORARY CONDITIONS FOR THE
REPRESENTATION OF IDENTITY 19, 21 (Anthony D. King ed., 1997).
482
Kogan, supra note 470, at 637.
420 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
In order to convey this basic idea, it might be useful to give an admit-
tedly oversimplified, functionalist account of the change in American juris-
dictional rules over time. In this account, the territorially based jurisdic-
tional principle articulated in the nineteenth century by the U.S. Supreme
Court in Pennoyer v. Neff 483
--which held that states have complete author-
ity within their territorial boundaries but no authority outside those bounda-
ries484
---derives in part from a particular understanding of social space in
the United States at that time. As historian Robert Wiebe has famously ob-
served, "America during the nineteenth century was a society of island
communities."485
With weak communication and limited interaction, these
"islands" felt widely dispersed, and it is not surprising that local autonomy
became "[t]he heart of American democracy."486
Even though France had
long since developed a centralized public administration, Wiebe argues that
Americans still could not even conceive of a distant managerial govern-
ment. In such a climate, geographical loyalties tended to inhibit connec-
tions with a whole society. "Partisanship . . . grew out of lives narrowly cir-
cumscribed 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 identi-
fication within."487
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 out-
siders, 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 re-
sponded by reaffirming community self-determination and preserving old
ways and values from "outside" invasion.488
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 im-
483
95 U.S. 714 (1877).
484
See id. at 722 (ruling that a State has power to decide the "civil status and capacities
of its inhabitants" and to regulate how property may be handled, but that "no State can exer-
cise direct jurisdiction and authority over persons or property without its territory").
485
ROBERT H. WIEBE, THE SEARCH FOR ORDER: 1877-1920, at xiii (1967).
486
Id.
487
Id. at 27.
488
Id. at 52-58. For a fictional account of this period that gives texture to this descrip-
tion, see WILLA CATHER, MY ANTONIA (Houghton Mifflin Co. 1926) (1918).
2002] GLOBALIZATION OF JURISDICTION 421
portant was the psychic burden of being forced to defend oneself in a for-
eign state, which may have felt little different from the idea of defending
oneself in a foreign country. An 1874 Pennsylvania state court decision is-
sued shortly before Pennoyer illustrates the extent of this psychic burden.489
In the case, a resident of New York had contested jurisdiction in Pennsyl-
vania. 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."490
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. Indeed, the decision seemed to equate other states with for-
eign 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."491
These passages indicate that the psychic significance of de-
fending oneself in another state was at least as important as the literal diffi-
culties of travel.
Both the literal and psychic burdens associated with out-of-state litiga-
tion 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, economic and governmental activities were adminis-
tered 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, bu-
reaucratic, regulatory bodies in an increasingly complex society."492
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 lo-
cal, a state boundary symbolized the edge of the world and everything out-
side that boundary was alien and foreign."493
With increased mobility,
however, Americans regularly crossed state boundaries by train, by car, and
by airplane, which inevitably 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 dis-
489
Coleman's Appeal, 75 Pa. 441 (1874).
490
Id. at 457 (1874).
491
Id. Indeed, for juridical purposes, other states had, since the founding, been treated
much like foreign countries, even for some time after the Civil War.
492
Kogan, supra note 470, at 651 (citations omitted).
493
Id. at 652.
422 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
tance as a social barrier began to be bypassed through the shortening of
communication `distance.'"494
These communication and transportation ad-
vances reinforced the functional interdependence that characterized the
United States throughout the twentieth century. As a result, almost all of us
are now 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 remained an imposition, but the burdens were no longer per-
ceived in stark territorial terms. In other words, though many economic and
practical burdens remained, the psychic burden was no longer as strong.
Thus, it is not surprising that International Shoe substituted a flexible "fair-
ness" test for the more rigidly territorial scheme of Pennoyer.
As previously stated, this is an oversimplified account of the shift in
American jurisdictional rules. For the purposes of this discussion, however,
it makes the essential point clearly enough: changes in political and social
conceptions of space form at least part of the context for changes in jurisdic-
tional understandings. Thus, although some might ask why we need to re-
think our ideas about legal jurisdiction, the reality is that jurisdictional rules
are always evolving, and this evolution has always responded to changing
social constructions of space, distance, and community.
With the rise of global capitalism and the Internet, the question be-
comes whether the sense of social space has shifted once again. Arguably,
people 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.495
Essential services, such as computer programming, can
easily be "shipped" across nation-state boundaries and can even be pro-
duced 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 or-
ganized around shared interests. People fly more than ever, carry tele-
phones and laptops with them as they travel, and keep in touch by e-mail.
494
JOSHUA MEYROWITZ, NO SENSE OF PLACE: THE IMPACT OF ELECTRONIC MEDIA ON
SOCIAL BEHAVIOR 116 (1985).
495
See infra notes 701-04 and accompanying text (discussing the extent of global corpo-
rate and financial market activity and the impact of this activity on governmental institutions,
such as central banks).
2002] GLOBALIZATION OF JURISDICTION 423
All of these changes radically reshape the relationship of people to their
geography.496
As Joshua Meyrowitz observed nearly twenty years ago,
electronic media create "a nearly total dissociation of physical place and so-
cial `place.' When we communicate through telephone, radio, television, or
computer, where we are physically no longer determines where and who we
are socially."497
Meyrowitz pointed out that, historically, communication
and travel were synonymous, and it was not until the invention of the tele-
graph that text messages could move more quickly than a messenger could
carry them.498
Thus, "informational differences between different places
began to erode."499
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 informa-
tion and access to places has been greatly weakened."500
Given such changes, it is possible that the psychic burden of foreign ju-
risdiction is less significant today because of our increased contact with for-
496
Some have conceptualized this shift as a change in the way we experience and repre-
sent space and time. See, e.g., ANTHONY GIDDENS, THE CONSEQUENCES OF MODERNITY 64
(1990) (describing the problem of today's higher level "time-space distanciation" which has
stretched local and distant social forms); TOMLINSON, supra note 474, at 4-5 (describing the
way airline journeys transform "spatial experience into temporal experience"). In that regard,
it is interesting to link this change to shifts in the arts. For example, in visual arts, Friedland
and Boden have observed that the fall of the linear perspective of early Renaissance painting
occurred along with the rediscovery of Euclidean geometry and the emergence of spatial rep-
resentation, such as maps. Roger Friedland & Deirdre Boden, NowHere: An Introduction to
Space, Time and Modernity, in NOWHERE: SPACE, TIME AND MODERNITY 1, 2 (Roger Fried-
land & Deirdre Boden eds., 1994) (citing Denis Cosgrove, Prospect, Perspective, and the
Evolution of the Landscape Idea, in 10 TRANSCRIPTS OF THE INSTITUTE OF BRITISH
GEOGRAPHERS 45, 46-48 (1985)). In the late nineteenth century, the impressionists "frag-
mented light (and thus time)." Id. at 1-2. Then, postimpressionists such as Cézanne built "a
new language, abandoning linear and aerial perspective and making spatial dispositions arise
from the modulations of color." Id. at 2 (citing CHARLES TAYLOR, SOURCES OF THE SELF:
THE MAKING OF THE MODERN IDENTITY 468 (1989)). The cubists went still further, "provid-
ing simultaneous images of the same moment from different points in space and multiple
views of a single scene at various points in time." Id. at 2; see also Stephen Kern, Cubism,
Camouflage, Silence, and Democracy: A Phenomenological Approach, in NOWHERE:
SPACE, TIME AND MODERNITY, supra at 163, 167 (describing how artists such as "Picasso
and Braque gave space the same colors, texture and substantiality as material objects and
made objects and space interpenetrate so as to be almost indistinguishable"). Likewise the
development of the modern novel--with books such as MARCEL PROUST, REMEMBRANCE OF
THINGS PAST (C.K. Scott Moncrieff & Terence Kilmartin trans., 1954); JAMES JOYCE,
FINNEGANS WAKE (1939); and VIRGINIA WOOLF, MRS. DALLOWAY (1925)--also mined
changes in the equation between space and time.
497
MEYROWITZ, supra note 494, at 115.
498
See id. at 116 (describing the impact of telegraphic technology).
499
Id.
500
Id. at 117.
424 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
eign 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 sys-
tem.501
Moreover, in either scenario the "we" is problematic. After all, dif-
ferent social groups, and different individuals, have very different degrees
of exposure to and control over global flows of information, capital, and
human migration.502
Nevertheless, the important point is that if jurisdic-
tional 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 im-
portance of territorial borders and of geographical distance is being chal-
lenged.
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.
The definition of a threat as internal or external is, in part, a question of
jurisdiction. When a community exercises legal jurisdiction, it is symboli-
cally 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 jurisdic-
tion can be seen as one way that communities domesticate chaos.
I have written previously about the surprisingly widespread and elabo-
rate practice in medieval Europe and ancient Greece of putting on trial ani-
501
Cf. GIDDENS, supra note 496, 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.")
502
Doreen Massey refers to this as the "power geometry of time­space compression."
MASSEY, supra note 30, at 149. She contrasts those who are "in charge" of time-space com-
pression--"the jet-setters, the ones sending and receiving the faxes and the e-mail, holding the
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 charge" of the
process in the same way. Id. These people include those such as undocumented migrant
workers who cross 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.
2002] GLOBALIZATION OF JURISDICTION 425
mals and inanimate objects that caused harm to human beings.503
Although
such trials may seem far removed from any discussion of contemporary ju-
risdictional rules, I believe they illuminate the symbolic content of such
rules. In deciding how to respond to acts of violence or 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 in-
sensate 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.504
To combat such a fear, it may have
been essential to view the animals not as uncontrollable natural forces be-
longing to the outside world, but as members of the community who could
actually break the community's laws. By asserting dominion over the ani-
mals, members of communities could assure themselves that, even if the so-
cial order had been violated, at least there was some order, and not simply
undifferentiated chaos.
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 both 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
of destruction that obey only their own law. By bringing the corporation
within local jurisdiction, the individual and the community may feel they
have regained some control over their world.
Finally, the need to assert community dominion may also be a signifi-
cant part of the desire to use legal and quasi-legal proceedings to respond to
atrocities such as war crimes, genocide, or crimes against humanity. For
503
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) [hereinafter Berman, Transformative Poten-
tial of Law] (using a discussion of animal trials to explore overlooked social benefits of legal
proceedings); Paul Schiff Berman, Note, Rats, Pigs, and Statues on Trial: The Creation of
Cultural Narratives in the Prosecution of Animals and Inanimate Objects, 69 N.Y.U. L. REV.
288 (1994) (surveying the history of animal trials and analyzing their role in helping a com-
munity heal after a breach of the social order).
504
Nicholas Humphrey, Foreward to E.P. EVANS, THE CRIMINAL PROSECUTION AND
CAPITAL PUNISHMENT OF ANIMALS, at xxv (paperback ed., Faber & Faber Ltd. 1987) (1907)
(articulating the strong fear of Greeks and medieval Europeans that "God was playing dice
with the universe").
426 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
example, the trial of accused Nazi war criminal Klaus Barbie, held in France
several years ago, arguably was concerned less with punishing the individ-
ual (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.505
The rise of online communication may create increased pressure to as-
sert 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 regu-
late corporate activity may feel threatened when outside businesses can ig-
nore the local laws through Internet sales.506
These "external" threats ap-
pear to flout local norms.
It is against this backdrop that we may understand the seemingly ex-
treme position of the district court in the Instruction Set case discussed ear-
lier in this Article.507
There the court ruled that, if an individual's website is
accessible in a community, then the community can claim dominion over
that individual.508
Similarly, the French court in Yahoo! appears to have
conceptualized the website as a force that had "entered" France and was
therefore 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 develop intuitions about jurisdic-
tional questions.
505
See Guyora Binder, Representing Nazism: Advocacy and Identity at the Trial of
Klaus Barbie, 98 YALE L.J. 1321, 1322 (1989) (describing the intent of the trial as "pedagogi-
cal").
506
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 57-61 (discussing such changes).
507
Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp 161 (D. Conn. 1996); see also
supra text accompanying notes 416-418 (discussing the Instruction Set case).
508
Instruction Set, 937 F. Supp. at 165.
2002] GLOBALIZATION OF JURISDICTION 427
C. Jurisdiction and the Extension of Community Membership
The previous Section discussed how the exercise of jurisdiction func-
tions 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 juris-
diction, 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 is-
sued by an Islamic leader against author Salman 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 to-
tal 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 jurisdic-
tion acted to extend community membership.
Similarly, by prosecuting war criminals or human rights abusers we are
insisting that the defendants are members of the world community. Accord-
ingly, the assertion of jurisdiction 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 others and therefore
cannot simply impose their will with impunity. Meanwhile, the assertion of
jurisdiction also implicitly delivers a message to the public that the defen-
dants are neither sub-human nor the agents 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.509
For example,
509
For example, truth commissions have been established in countries including Argen-
tina, Bolivia, Chile, El Salvador, Guatemala, Haiti, the Phillipines, Rwanda, Somalia, South
Africa, Uganda, and Uruguay. See PRISCILLA B. HAYNER, UNSPEAKABLE TRUTHS:
CONFRONTING STATE TERROR AND ATROCITY 291-97 (2001) (listing twenty truth commis-
sions established since 1982); MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS:
FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE 53-54 (1998) (describing the es-
tablishment of truth commissions in African and South American countries); Michael P.
Scharf, The Case for a Permanent International Truth Commission, 7 DUKE J. COMP. & INT'L
L. 375, 377-78 (1997) (providing a brief history of truth commissions and detailing their es-
tablishment in particular countries). Indeed, "truth commissions have proliferated, and now
every nation emerging from dictatorship or war wants one. This year Nigeria, Ghana, Sierra
428 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
the Truth and Reconciliation Commission (TRC) proceedings in South Af-
rica have attempted to restore psychic membership in the South African
community to both victims and perpetrators. The TRC required that those
perpetrators seeking amnesty both acknowledge the community's jurisdic-
tion by appearing before the commission and then address that community
by recounting their misdeeds in an open forum.510
Likewise, victims who
for years were not recognized as full-fledged members of the South African
community were given an opportunity to speak about their pain and to enter
into the community's legal system instead of remaining outside of it. The
TRC proceedings, therefore, implicitly expressed the hope that victims, per-
petrators, and spectators could all be integrated into the new South African
community.
Even in more commonplace legal proceedings, the idea of asserting
community membership through jurisdiction may be important. For exam-
ple, 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, a multinational corporation may come to conceive of itself as a
corporate citizen of many different localities because of the potential exer-
cise of local jurisdiction. Accordingly, the exercise of jurisdiction may en-
courage corporate officials to rethink their sense of responsibility to com-
munities far beyond the boundaries of their corporate headquarters.
In addition, the ability to assert the jurisdiction of a court may give peo-
ple some sense of their own membership in the community. Prison inmates
bringing civil rights actions against abusive guards, for example, may feel
validated simply because they are able to invoke the jurisdiction of a court.
Regardless of outcome, the fact that the inmates' grievances are aired and
considered, however briefly, may give marginal members of society a
greater sense of community affiliation.511
As a result, the assertion of com-
munity dominion may be beneficial both for the community, which can as-
sert its control over otherwise uncontrollable behavior, and for the individ-
ual, 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)
Leone, Peru, Panama, East Timor, Yugoslavia, Bosnia and South Korea all began commis-
sions or have them under way." Tina Rosenberg, Designer Truth Commissions, N.Y. TIMES,
Dec. 9, 2001, § 6 (Magazine), at 66; see also HAYNER, supra, at 5 (discussing the possibility
of truth commissions in Indonesia, Colombia, and Bosnia).
510
See MINOW, supra note 509, at 55-57 (describing the conditions attached to the
TRC's grant of amnesty).
511
See Roland Acevedo, Thoughts of an Ex-Jailhouse Lawyer, N.Y. L.J., Aug. 5, 1998,
at 2 (describing the psychological benefit prison inmates receive from being able to bring a
lawsuit in court even if the suit is ultimately unsuccessful).
2002] GLOBALIZATION OF JURISDICTION 429
rather than a purely external pariah (who has no rights).512
The assertion of community membership is relevant to discussions of
Internet jurisdiction as well. As discussed previously, the growth of elec-
tronic communications is closely linked to our increasing global economic
and psychological interdependence.513
Online interaction contributes to our
awareness of outsiders and our sense of connection with them. People de-
velop friendships and business relationships regardless of physical prox-
imity; 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 commu-
nity 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 com-
munity membership, then jurisdictional rules, in turn, must evolve. Other-
wise, we will risk being trapped in a legal doctrine that no longer represents
the reality of modern life, just as the United States was trapped during the
first half of the twentieth century when courts struggled to expand the strict
territorial rule of Pennoyer.
D. Jurisdiction and the Assertion of Alternative Norms
We are accustomed to thinking of jurisdictional assertions as the unique
province of a sovereign entity. The assertion of jurisdiction, however, can
also open space for the articulation of norms that function as alternatives to,
or even resistance to, sovereign power. For example, in seventeenth-
century England, common law courts began to issue writs of prohibition in
order to prevent the rival Court of High Commission from hearing certain
cases.514
In response, some critics argued that the common law courts were
overreaching and that the question of which court had proper jurisdiction to
hear a case could only be resolved by the king because the authority of all
512
But see DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER
IN CONTEMPORARY SOCIETY 1-3 (2001) (charting the retreat in the United States and Britain,
since the early 1970s, from a crime control model concerned with criminal rehabilitation to an
"official policy of punitive sentiments and expressive gestures that appear oddly archaic and
downright anti-modern").
513
See MEYROWITZ, supra note 494, at 115­17 (discussing the relationship between
electronic media and the erosion of social boundaries).
514
See CATHERINE DRINKER BOWEN, THE LION AND THE THRONE: THE LIFE AND
TIMES OF SIR EDWARD COKE 295 (1956) (explaining how Sir Edward Coke attacked the Ec-
clesiastical High Commission through writs of prohibition); 12 EDWARD COKE, REPORTS OF
SIR EDWARD COKE 42 (E. Nutt et al. eds., 4th ed. 1738) (1655) (discussing the use of writs in
Nicholas Fuller's Case).
430 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
judges derived from him.515
In Prohibitions del Roy, Lord Coke describes
himself as having replied to such characterizations of the king's authority:
[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, but under God
and the Law].
516
Thus, Coke refused to place the king beyond or above the domain of law.
By challenging the king and affirming the jurisdiction of the common
law courts, Coke asserted the primacy of law even over sovereign power. In
doing so, however, he also stripped the courts of the very "institutional pro-
tection . . . that ordinarily stands behind" courts and enforces their orders.517
After all, who is to enforce legal jurisdiction when the king stands in oppo-
sition? This story makes 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 accep-
tance by communities (and coercive authorities) over time. Nevertheless,
despite the risk, the rhetorical assertion of jurisdiction itself can have an im-
portant effect.518
For example, Coke's memorialization of this jurisdictional
assertion in his treatise was undoubtedly part of the Enlightenment move-
ment to limit the power of kings and assert a higher rule of law. Thus, one
can see a direct line from Coke to Thomas Paine, who declared that, in the
new United States of America, "law is King."519
It is, of course, a commonplace to say that courts lack their own en-
forcement power, making them dependent on the willingness of states and
individuals to follow judicial orders. This observation is often used as an
argument for the irrelevance of international law itself: because such "law"
515
See, e.g., 12 COKE, supra note 514, at 63 (describing the debate as to who had au-
thority to decide jurisdiction in Prohibitions del Roy, 77 Eng. Rep. 1342 (K.B. 1607)); see
also BOWEN, supra note 514, at 303-04 (discussing the debate over the king's "absolute
power and authority" to decide legal disputes).
516
12 COKE, supra note 514, at 65.
517
Cover, supra note 2, at 186.
518
There is some evidence that Coke's version of his actions is not accurate and that he
actually capitulated to the king's authority. See BOWEN, supra note 514, at 305-06 (observing
that some historians have rejected Coke's account, relying on other seventeenth-century evi-
dence, which indicates that Coke actually threw himself on the mercy of the king). Even if
this is so, however, the rhetorical assertion of jurisdiction in his treatise might still have per-
suasive value over time.
519
THOMAS PAINE, Common Sense, in THE COMPLETE WRITINGS OF THOMAS PAINE 1,
29 (Philip S. Foner ed., 1945) (1776).
2002] GLOBALIZATION OF JURISDICTION 431
is subject to the realpolitik demands of pure power, so the argument goes, it
is not really law at all.520
Domestic law is substantially similar, however,
because courts can only exercise authority to the extent that someone with
coercive power chooses to carry out the legal judgments issued.521
Thus, the essence of law is that it makes aspirational judgments about
the future, the power of which depends on whether the judgments accurately
reflect evolving norms of the communities that must choose to obey them.
If this is so, then we might view extraterritorial lawmaking as substantially
similar to lawmaking within territorial bounds. To take the French prosecu-
tion of Yahoo! as an example,522
it is true that the court's command is only
enforceable if an American authority will agree to enforce it, but the same
court's 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 were to refuse 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 do-
minion, then all judicial decisions rely on both that particular community's
acquiescence and the willingness of other communities to recognize and en-
force the jurisdictional assertion. This is a sort of "natural law of jurisdic-
tion"523
in which jurisdictional assertions depend solely on the rhetorical
520
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. INT'L L. 205, 206 (1993) (describing the "Realist challenge" embod-
ied in "the defiant skepticism . . . that international law could ever play more than an epiphe-
nomenal 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." See HANS
J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 4,
26-27 (1949) ("International politics cannot be reduced to legal rules and institutions.").
521
Of course, the question of whether there is a fundamental difference between interna-
tional and domestic law has been a subject of debate within political theory. See generally
Kimberly Hutchings, Political Theory and Cosmopolitan Citizenship, in COSMOPOLITAN
CITIZENSHIP 3 (Kimberly Hutchings & Roland Dannreuther eds., 1999) (providing an over-
view of the various positions in this debate). That debate is beyond the scope of this Article.
I note only that many of the international relations realist objections to international law have
been made by American legal realists and critical legal studies scholars with regard to domes-
tic law as well. See, e.g., Laura A. Dickinson, Using Legal Process to Fight Terrorism: De-
tentions, Military Commissions, International Tribunals, and the Rule of Law, 75 S. CAL. L.
REV. 1407, 1477-78 (2002) (linking international relations realist claims to arguments made
by critical legal theorists about domestic law).
522
See supra Part I.D (analyzing the Yahoo! case).
523
Robert M. Cover, The Supreme Court, 1982 Term--Foreword: Nomos and Narra-
tive, 97 HARV. L. REV. 4, 58 (1983). See infra text accompanying notes 783-93 for a discus-
sion of a "natural law of jurisdiction" and the role of norms in creating legal legitimacy.
432 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
force of their articulation of norms to entice allegiance. Thus, a court asked
to enforce a prior court's judgment would always 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 should be
recognized.
* * * * * *
Having identified four ways in which the assertion of jurisdiction both
constructs and reflects social meaning, what remains to be investigated
more fully is the extent to which accepted notions of legal jurisdiction actu-
ally accord with the social meanings at play in the contemporary world.
Territorially fixed boundaries remain the primary way of differentiating ju-
risdictional space, and nation-states remain the primary jurisdictional com-
munity. 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 be-
tween jurisdiction and social understandings of space, borders, and commu-
nity is a topic that should engage theorists from a variety of disciplines.
Such theorists might help forge a more complex account of the world onto
which jurisdictional rules are imposed. They also might point the way to
alternative conceptions of jurisdiction grounded in, and reflective of, this
more complex view of the world. New conceptions of jurisdiction could al-
low for a more pluralist understanding of the variety of community affilia-
tions people experience in their lives. This Article next considers some of
this scholarship in order to challenge the authority of physical location, ter-
ritorial boundaries, and nation-state sovereignty that is usually assumed in
contemporary jurisdictional schemes.
IV. THE NATION-STATE AND THE SOCIAL/HISTORICAL CONSTRUCTION OF
SPACE, COMMUNITY, AND BORDERS
This Part surveys the vast literature in anthropology, sociology, political
science, and cultural studies concerning conceptions of borders, territorial-
ity, nation-state sovereignty, and the cultural construction of place and be-
longing. First, I will address the assumption that there is somehow a "natu-
ral" 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 as well as to be constructed by them. Therefore,
no jurisdictional scheme is necessarily more "natural" than any other. Sec-
ond, I will survey the historical rise of the modern conception of the nation-
2002] GLOBALIZATION OF JURISDICTION 433
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 political processes. Third, I will explore in more de-
tail the idea of community itself and the ways in which we might think of
the nation-state as an imagined community built on a set of narrative con-
structions. Fourth, I will consider several forms of community affiliation
that offer alternatives to the nation-state.
Taken together, this literature challenges any idea that national bounda-
ries somehow naturally or inevitably define jurisdiction. Instead, these au-
thors interrogate assumptions about identity, territoriality, community, and
sovereignty and reveal that the purported straightforward tie between geo-
graphical boundaries, community, personal identity, and nation-state sover-
eignty is problematic, contingent, socially constructed, and contested. The
analyses suggest that the conception of territorially based jurisdiction is not
an ineradicable fixture of political organization. This necessarily brief
overview thus opens space for creatively imagining more pluralistic concep-
tions 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, particularly on the idea that societies, na-
tions, and cultures occupy "naturally" discontinuous spaces. This assump-
tion ignores the possibility that territorial jurisdiction often produces politi-
cal and social identities rather than reflecting them.524
Indeed, the very idea
of territoriality--which we can think of as a "geographic strategy to control
people and things by controlling area"525
--is itself socially rooted.526
Thus,
524
See Ford, supra note 470, at 844 ("Jurisdictions define the identity of the people that
occupy them."). As Henri Lefebvre has observed, "Space is not a scientific object removed
from ideology or politics; it has always been political and strategic." Henri Lefebvre, Reflec-
tions on the Politics of Space, in 8 ANTIPODE 30, 31 (1979).
525
SACK, supra note 479, at 5.
526
It is the socially constructed nature of territoriality that permits theorists to discuss
"deterritorialization" with respect to globalizing processes. For examples of the literature on
deterritorialization, see NÉSTOR GARCÍA CANCLINI, HYBRID CULTURES: STRATEGIES FOR
ENTERING AND LEAVING MODERNITY (Christopher L. Chiappari & Silvia L. López trans.,
1995); MIKE FEATHERSTONE, UNDOING CULTURE: GLOBALIZATION, POSTMODERNISM AND
IDENTITY (1995); GLOBALIZATION AND TERRITORIAL IDENTITIES (Zdravko Mlinar ed.,
1992); SERGE LATOUCHE, THE WESTERNIZATION OF THE WORLD (Rosemary Morris trans.,
1996); JAMES LULL, MEDIA, COMMUNICATION, CULTURE: A GLOBAL APPROACH (1995);
ARMAND MATTELART, MAPPING WORLD COMMUNICATION: WAR, PROGRESS, CULTURE
(Susan Emanuel & James A. Cohen trans., 1994); DAVID MORLEY & KEVIN ROBINS, SPACES
OF IDENTITY: GLOBAL MEDIA, ELECTRONIC LANDSCAPES AND CULTURAL BOUNDARIES
434 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
conceptions of territoriality depend on "how people use . . . land, how they
organize themselves in space, and how they give meaning to place."527
Ab-
sent a rigorous attempt to develop a social understanding of how space is
actually constructed, the power of topography tends to obscure the topogra-
phy of power.528
In recent years, anthropologists, among others, have increasingly chal-
lenged the assumed correlation between a people, a culture, and a physical
place. Historically, anthropology had been premised on the idea that a
world of human differences could be conceptualized as a diversity of sepa-
rate societies each with its own culture. 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 implicit starting point was the
presumed existence of separate, individuated worldviews that could be as-
sociated with particular "peoples," "tribes," or "nations."529
This individuated conception of community, still so powerful in legal
discussions, no longer fits the understanding of anthropologists or the prac-
tice of ethnography. "In place of such a world of separate, integrated cul-
tural 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."530
As many commentators
have observed, cultural difference no longer can be based on territory be-
cause of the mass migrations and transnational culture flows of late capital-
(1995); Appadurai, supra note 7.
527
SACK, supra note 479, at 2.
528
See Akhil Gupta & James Ferguson, Beyond "Culture": Space, Identity, and the
Politics of Difference, in CULTURE, POWER, PLACE: EXPLORATIONS IN CRITICAL
ANTHROPOLOGY , supra note 3, at 33, 35 ("The presumption that spaces are autonomous has
enabled the power of topography successfully to conceal the topography of power."); 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 contempo-
rary system of nation-states composes a hegemonic topography"); cf. Ford, supra note 470, at
859 ("The ideological foundation of nation-states is primarily . . . organicism; nations are
thought to represent `a people' who are both distinctive and relatively homogenous. 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.").
529
See Akhil Gupta & James Ferguson, Culture, Power, Place: Ethnography at the End
of an Era, in CULTURE, POWER, PLACE: EXPLORATIONS IN CRITICAL ANTHROPOLOGY, su-
pra note 3, at 1, 1 (describing conceptions of "culture"); see also ULF HANNERZ,
TRANSNATIONAL CONNECTIONS: CULTURE, PEOPLE, PLACES 20 (1996) ("The idea of an or-
ganic relationship between a population, a territory, a form as well as a unit of political or-
ganization, and . . . cultures has . . . been an enormously successful one, spreading throughout
the world . . . at least as a guiding principle."); GEORGE W. STOCKING, JR., RACE, CULTURE,
AND EVOLUTION 202-03 (1968) (discussing Franz Boas's influence in defining "culture").
530
Gupta & Ferguson, supra note 529, at 2.
2002] GLOBALIZATION OF JURISDICTION 435
ism.531
Thus, the task recently has been to understand "the way that ques-
tions of identity and cultural difference are spatialized in new ways."532
Accordingly, anthropologists have argued that we live increasingly in
the "global cultural ecumene"533
of a "world in creolization."534
Similarly,
sociologists have attempted to replace their traditional emphasis on bounded
"societies" with "a starting point that concentrates upon analysing how so-
cial life is ordered across time and space . . . ."535
In both disciplines, there-
fore, one can see increasing efforts to explore the "intertwined processes of
place making and people making in the complex cultural politics of the na-
tion-state."536
Nevertheless, the assumption that a culturally unitary group (a "tribe"
or a "people" or even a "citizenry") is naturally tied to "its" territory is diffi-
cult to shake because such assumptions are so deeply ingrained in the mod-
ern consciousness.537
For example, simply the fact that contemporary maps
refer to a collection of "countries" constructs a picture of space as inherently
fragmented along territorial lines, where different colors correspond to dif-
ferent national societies, all of which are made to seem fixed in place.538
531
See, e.g., HANNERZ, supra note 529, at 8 ("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 7, at 33 (proposing a set of non-territorial "scapes" to re-
place "landscapes" as fields of inquiry); Friedland & Boden, supra note 496, at 42 ("The cir-
culation of populations and symbols is progressively undercutting the essential relation be-
tween territory and culture, the link between place and identity."); see also TOMLINSON, supra
note 474, at 106-49 (discussing the mundane ways in which deterritorialization is experienced
in everyday life).
532
Gupta & Ferguson, supra note 529, at 3; see also Austin Sarat & Thomas R. Kearns,
The Unsettled Status of Human Rights: An Introduction, in HUMAN RIGHTS: CONCEPTS,
CONTESTS, CONTINGENCIES 1, 13 (Austin Sarat & Thomas R. Kearns eds., 2001) (noting "a
new understanding of culture in which an awareness of internal plurality, fragmentation, and
contestation replaces former tendencies to speak of cultures as . . . unified wholes").
533
Ulf Hannerz, Notes on the Global Ecumene, PUB. CULTURE, Spring 1989, at 66;
Robert J. Foster, Making National Cultures in the Global Ecumene, 20 ANN. REV.
ANTHROPOLOGY 235 (1991); see also Appadurai, supra note 7, at 28 (arguing that "an over-
lapping set of ecumenes [has begun] to emerge, in which congeries of money, commerce,
conquest, and migration . . . create durable cross-societal bonds"); Arjun Appadurai & Carol
A. Breckenridge, Editors' Comments, PUB. CULTURE, Fall 1988, at 1, 1 ("[T]he emergent
public cultures of many nation-states . . . constitute the centers of new forms of cosmopolitan-
ism in many linguistic and cultural ecumenes.").
534
Ulf Hannerz, The World in Creolisation, 5 AFR. 546 (1987).
535
GIDDENS, supra note 496, at 64.
536
Gupta & Ferguson, supra note 529, at 4; see also id. ("[A]ll associations of place,
people, and culture are social and historical creations to be explained [or justified], not given
natural facts.").
537
See Gupta & Ferguson, supra note 528, at 40 (challenging "the national habit of tak-
ing the association of citizens of states and their territories as natural").
538
Id. at 34; see also Ford, supra note 470, at 866-67 (linking the emergence of jurisdic-
436 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
Looking at such maps, "schoolchildren are taught such deceptively simple-
sounding beliefs as that France is where the French live, America is where
the Americans live, and so on."539
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. Nonetheless, "we assume a natural
association of a culture (`American culture'), a people (`Americans'), and a
place (`the United States of America')," and we therefore "present associa-
tions of people and place as solid, commonsensical, and agreed on, when
they are in fact contested, uncertain, and in flux."540
This naturalization of
jurisdiction means that "space itself becomes a kind of neutral grid on which
cultural difference, historical memory, and societal organization [are] in-
scribed."541
As a result, although the social and political construction of
space is a fundamental aspect of legal ordering, the constructed nature of the
enterprise disappears from analytical purview.542
Geographers, though they too historically tended to assume a "natural"
bond between a people, the land, and a set of legal institutions,543
are in-
creasingly recognizing the power and politics of the construction of space in
society544
as well as the symbolic significance of maps.545
Maps often func-
tion to the development of cartography).
539
Gupta & Ferguson, supra note 528, at 40.
540
Id.
541
Id. at 34.
542
See Ford, supra note 470, at 854 (observing that "jurisdictional space may serve to
obscure social relations and the distribution of resources").
543
See, e.g., ELLEN CHURCHILL SEMPLE, INFLUENCES OF GEOGRAPHIC ENVIRONMENT
51 (1911) ("[H]uman activities are fully intelligible only in relation to the various geographic
conditions which have stimulated them in different parts of the world. . . . Therefore anthro-
pology, sociology, and history should be permeated by geography."), reprinted in FORMATIVE
INFLUENCES OF LEGAL DEVELOPMENT 215, 216-17 (Albert Kocourek & John H. Wigmore
eds., 1918).
544
See BLOMLEY, supra note 476, at 42 ("Recent geographic scholarship . . . has
adopted what might be regarded as a relational view of space. Drawing on those such as Le-
febvre, some theorists regard space as both socially produced and as socially constitutive, and
as deeply implicated in power relations . . . ." (citation omitted)). For examples of such criti-
cal geography, see JOHN A. AGNEW, PLACE AND POLITICS: THE GEOGRAPHICAL MEDIATION
OF STATE AND SOCIETY (1987); CULTURAL ENCOUNTERS WITH THE ENVIRONMENT:
ENDURING AND EVOLVING GEOGRAPHIC THEMES (Alexander B. Murphy & Douglas L. John-
son eds., 2000); PRED, supra note 471; ALLAN PRED & MICHAEL JOHN WATTS, REWORKING
MODERNITY: CAPITALISMS AND SYMBOLIC DISCONTENT (1992); EDWARD W. SOJA,
POSTMODERN GEOGRAPHIES: THE REASSERTION OF SPACE IN CRITICAL SOCIAL THEORY
(1989); WINICHAKUL THONGCHAI, SIAM MAPPED: A HISTORY OF THE GEO-BODY OF A
NATION (1994); Doreen Massey, Politics and Space/Time, NEW LEFT REV., Nov.-Dec. 1992,
at 65; Allan Pred, Place as Historically Contingent Process: Structuration and the Time-
Geography of Becoming Places, 74 ANNALS ASS'N AM. GEOGRAPHERS 279 (1984); N.J.
Thrift, On the Determination of Social Action in Space and Time, 1 ENV'T & PLAN. D: SOC'Y
& SPACE 23 (1983).
2002] GLOBALIZATION OF JURISDICTION 437
tion as "almost the perfect representation[s] of the state."546
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 or-
ders of government."547
In addition, many social and cultural groupings--
such as ethnic or religious ties--might not be reflected in state-sponsored
maps at all.548
These cartographic "silences"549
may be the result of "delib-
erate exclusion, willful ignorance, or even actual repression."550
As con-
temporary debates about the distortions caused by various "projections" of
the
545
See, e.g., THONGCHAI, supra note 544, at 129-30 ("[Mapping] became a lethal in-
strument to concretize the projected desire on the earth's surface . . . . 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."); Alan K. Henrikson, The Power and Politics of Maps, in
REORDERING THE WORLD: GEOPOLITICAL PERSPECTIVES ON THE TWENTY-FIRST CENTURY,
supra note 8, at 49, 49 ("To formulate a political plan, diplomats must have a geographical
conception, which requires the cartographic image of a map."). Indeed, maps are often per-
suasive precisely because, though they always constitute an attempt to portray the world in a
specific way, the interests underlying that attempt tend to remain unacknowledged. See Diane
M. Bolz, `Follow Me . . . I Am the Earth in the Palm of Your Hand,' SMITHSONIAN, Feb.
1993, at 112, 113 ("[Maps] are convincing because the interest they serve is masked."). See
generally DENIS WOOD, THE POWER OF MAPS 1 (1992) (discussing the ability of maps to rep-
resent the past and the interests served in their creation). In the thrall of such "cartohypnosis,"
people "accept subconsciously and uncritically the ideas that are suggested to them by maps."
S.W. Boggs, Cartohypnosis, 15 DEP'T ST. BULL. 1119, 1119 (1946); see also Ford, supra
note 470, 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.").
546
Henrikson, supra note 545, at 59.
547
Id.
548
Id.; see also Ford, supra note 470, at 853 (observing that jurisdictional lines tend to
define an abstract area that is "conceived . . . independently of any specific attribute of that
space").
549
See J.B. Harley, Silences and Secrecy: The Hidden Agenda of Cartography in Early
Modern Europe, 40 IMAGO MUNDI 57, 57 (1988) (describing "the dialogue that arises from
intentional or unintentional suppression of knowledge in maps").
550
Henrikson, supra note 545, at 59. For example, the removal or alteration of the place
names of conquered peoples or minority groups establishes a silence of subordination. See
Harley, supra note 549, at 66 ("Conquering states impose a silence on minority or subject
populations through their manipulation of place names."). As one commentator has observed,
cartography has always been "a teleological discourse, reifying power, reinforcing the status
quo, and freezing social interaction within charted lines." J.B. Harley, Maps, Knowledge, and
Power, in THE ICONOGRAPHY OF LANDSCAPE 277, 302-03 (Denis Cosgrove & Stephen
Daniels eds., 1988).
438 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
world make clear,551
our cartographic representations are socially con-
structed and politically fraught.552
Indeed, "[a]lthough 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."553
First, many people inhabit border areas,
where "[t]he fiction of cultures as discrete, objectlike phenomena occupying
discrete spaces becomes implausible."554
Such people may feel an affilia-
tion with the state controlling the area, the nation with which most inhabi-
tants identify, or the borderland itself.555
Second, many others live a life of
551
See, e.g., ARNO PETERS, THE EUROPE-CENTERED CHARACTER OF OUR
GEOGRAPHICAL VIEW OF THE WORLD AND ITS CORRECTION (1979) (analyzing the size and
position of countries on world maps and the Euro-centrism inherent in such maps); Arthur H.
Robinson, Arno Peters and His New Cartography, 12 AM. CARTOGRAPHER 103 (1985) (criti-
cizing the "Peters Projection"); see also Henrikson, supra note 545, at 63-64 (describing the
"battle of the maps" pitting the Peters projection against the Mercator projection).
552
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.").
553
David H. Kaplan, Territorial Identities and Geographic Scale, in NESTED
IDENTITIES: NATIONALISM, TERRITORY, AND SCALE 31, 35 (Guntram H. Herb & David H.
Kaplan eds., 1999).
554
Gupta & Ferguson, supra note 528, at 34. Chicana writer and poet Gloria Anzaldúa
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. It's not a comfortable territory to live in, this place of contradic-
tions. Hatred, anger, and exploitation are the prominent features of this landscape.
However, there have been compensations for this mestiza, and certain joys. Liv-
ing 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 be-
ing a participant in the further evolution of humankind . . . .
GLORIA ANZALDÚA, Preface to BORDERLANDS/LA FRONTERA: THE NEW MESTIZA (1987).
555
See ANSSI PAASI, TERRITORIES, BOUNDARIES AND CONSCIOUSNESS: THE
CHANGING GEOGRAPHIES OF THE FINNISH-RUSSIAN BORDER (1996) (studying the territorial
and social consequences of imposed frontiers); Jena Gaines, The Politics of National Identity
in Alsace, 21 CAN. REV. STUD. NATIONALISM 99 (1994) (discussing cultural issues emerging
in Alsace resulting from the French-German struggles in the region); Oren Yiftachel, Region-
alism Among Palestinian-Arabs in Israel, in NESTED IDENTITIES: NATIONALISM,
TERRITORY, AND SCALE, supra note 553, at 237, 237 (addressing "the role of territory, geo-
graphical scale, and location as complementing other factors in the political mobilization and
identity formation among the Arabs"). Residents of borderland regions, because they are of-
ten so physically removed from the state center, are often psychologically, as well as physi-
cally, isolated. See STEIN ROKKAN & DEREK URWIN, ECONOMY, TERRITORY, IDENTITY:
POLITICS OF WEST EUROPEAN PERIPHERIES 3 (1983) ("When we say that one area is periph-
eral to another, this not just an abstract matter of geographical location: the peripherality will
be expressed concretely in the daily life of the inhabitants of the area, and in the nature of
2002] GLOBALIZATION OF JURISDICTION 439
border crossings: migrant workers, nomads, and members of the transna-
tional business and professional elite. For these people, it may be impossi-
ble to find a unified cultural identity. For example, "[w]hat is `the culture'
of farm workers who spend half a year in Mexico and half in the United
States?"556
Finally, many people cross borders on a relatively permanent
basis, including immigrants, refugees, exiles, and expatriates.557
For them,
the disjuncture of place and culture is especially clear. Immigrants invaria-
bly 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"
because members of a single diaspora may live in many different countries,
and "extremely national" in their continued cultural and political loyalty to a
homeland.558
Indeed, such clashes of former culture and present community
have led to questions about the so-called "cultural defense" to certain
crimes.559
And the divided loyalty of diaspora communities can cause host
their links with groups in the centre."). These regions, 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 P. Augelli, Na-
tionalization of Dominican Borderlands, 70 GEOGRAPHICAL REV. 19, 24 (1980) ("[T]he basic
aims of the nationalization program were to stamp the Dominican national identity on both
people and land of the frontier provinces . . . ."); see also George W. White, Transylvania:
Hungarian, Romanian, or Neither?, in NESTED IDENTITIES: NATIONALISM, TERRITORY, AND
SCALE, supra note 553, at 267, 280-84 (discussing efforts by the Romanian and Hungarian
states to eradicate the national influences of the other in the borderland of Transylvania).
556
Gupta & Ferguson, supra note 528, at 34.
557
Id.
558
Kaplan, supra note 553, at 38. See generally MODERN DIASPORAS IN
INTERNATIONAL POLITICS (Gabriel Sheffer ed., 1986) (examining the influence of ethnic di-
asporas on international and trans-state politics).
559
So-called "cultural defenses" use evidence about a defendant's cultural background
to negate or to mitigate criminal liability (with a concomitant sentence reduction). For exam-
ple, in one early use of a cultural defense in the United States, a court in Fresno, California
took into account a husband's 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 kidnapping. See Rorie Sherman, "Cultural" Defenses Draw Fire, NAT'L
L.J., Apr. 17, 1989, at 3 (reporting recent usage of the "cultural defense," including the Fresno
case, People v. Moua, No. 315972 (Cal. Super. Ct. 1985)). To its supporters, the "cultural
defense is an argument for tolerance of foreign cultures due to a lack of moral basis for pun-
ishment." Andrew M. Kanter, Note, 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, Comment, Cultural Conflicts in Court: Should the American Crimi-
nal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141, 144
(1994) ("Permitting the defense promotes an unfair policy towards the majority to whom the
defense is unavailable, and the defense violates principles of legality . . . . [O]pponents assert
that a recognition of the cultural defense would, in essence, condone and even encourage[] the
440 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
countries to view members of these communities as potential threats.560
By
creating communities of interest rather than place, diasporas (the number of
which is increasing due largely to labor immigration)561
pose an implicit
threat to territorially based nation-states.562
In sum, we see that "[p]rocesses
of migration, displacement and deterritorialization are increasingly sunder-
ing the fixed association between identity, culture, and place."563
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 plural-
ity of cultures within the framework of a national identity."564
Thus, even
people who remain in seemingly familiar and ancestral places are likely to
find that their relation to place continues to change over time. The illusion
of a natural and essential connection between the place and the culture will
therefore be consistently challenged. 565
violence toward women that is practiced throughout the world."); Neal A. Gordon, Note, 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 for-
eign cultures by likening it to insanity . . . . [T]he defense isolates cultural groups with a pa-
tronizing wink. This isolation may lead in turn to a balkanized law and reinforce the idea that
minorities should be treated differently."). Of course, there are many further questions about
what gets presented as "culture" and why, as well as the relationship between supposed ra-
tionality on the one hand and assumed cultural imperatives on the other. See, e.g., Leti Volpp,
(Mis)Identifying Culture: Asian Women and the "Cultural Defense," 17 HARV. WOMEN'S
L.J. 57, 58 (1994) ("The `cultural defense' presents several complex problems inherent in es-
sentializing a culture and its effect on a particular person's behavior.").
560
See Kaplan, supra note 553, at 38 (noting that host communities "remain circumspect
about any external loyalties and identities").
561
Id.
562
See Robin Cohen, Diasporas and the Nation-State: From Victims to Challengers, 72
INT'L AFF. 507, 517 (1996) (suggesting that people primarily identify with others based on
shared opinions, tastes, ethnicities, religions, and other interests and are indifferent toward
their nation-state); see also James Clifford, Diasporas, 9 CULTURAL ANTHROPOLOGY 302,
307 (1994) ("Diasporas are caught up with and defined against . . . the norms of nation-states
. . . ."). For a provocative attempt to frame a "diasporan model" of citizenship and the nation-
state, see Anupam Chander, Diaspora Bonds, 76 N.Y.U. L. REV. 1005 (2001).
563
Gupta, supra note 3, at 196.
564
Gupta & Ferguson, supra note 528, at 35. Even the idea that there are "subcultures"
within a society tends
to preserve the idea of distinct "cultures" . . . within the same geographical and terri-
torial space. Conventional 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 concepts are sugges-
tive because they endeavor to stretch the naturalized association of culture and place,
they leave the tie between culture and place largely intact.
Id.
565
For example, Gupta and Ferguson argue that for the contemporary English, "`Eng-
2002] GLOBALIZATION OF JURISDICTION 441
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 experienced as truly local at all; nearly "everyone who shops
there is aware 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.566
Thus, while experiencing a "local" place, we recognize
the absent forces that structure our experience. Such forces include the
steady decline in local ownership of public spaces, which can itself be
linked to the globalization of capital.567
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 such as 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 ever-broadening horizon of relevance in people's routine ex-
perience . . . ."568
The increased access to media also affects deterritoriali-
zation because one is no longer limited to the perspectives offered from
within one's "home culture."569
Thus, the "typical" life of a suburban fam-
ily in the United States may become as familiar to world citizens inundated
by American film and television as their own "home" life.570
And, of
course, those with 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.
Ironically, although actual places and localities are increasingly blurred
and indeterminate, ideas of culturally and ethnically distinct places may be-
lishness[]' . . . is just as complicated and nearly as deterritorialized a notion as Palestinian-
ness or Armenian-ness, for `England' (`the real England') refers less to a bounded place than
to an imagined state of being or a moral location." Id. at 38; see also RAYMOND WILLIAMS,
TOWARDS 2000, at 177 (1983) (illustrating the cosmopolitan existence of a typical English
person experiencing everyday life); TOMLINSON, supra note 474, at 113-16 (updating Wil-
liams's story from the early 1980s to the late 1990s).
566
GIDDENS, supra note 496, at 140-41.
567
TOMLINSON, supra note 474, at 107-08.
568
Id. at 115.
569
See id. at 116 (describing the choice of perspectives available through new media and
the resultant overlaps between national and local perspectives).
570
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
`real' locality?").
442 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
come even more important.571
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 territorial-
ized anchors in their actuality. Indeed, one of the primary illusions of na-
tionalism is the presumption that one's nation has existed from time imme-
morial. 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 mod-
ernity."572
Thus, in the next two Sections I first explore the particular social
and historical context surrounding the rise of the nation-state, and then sur-
vey the many ways that nations imagine themselves as natural and inevita-
ble 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 correspon-
dence between territory, governance, and people. Yet, by looking at the his-
torical rise of the nation-state, we can see that these ties are both relatively
recent573
and the result of a particular sequence of events. Thus, instead of
simply asserting the inevitability of nation-state sovereignty, we must at-
tempt to understand "why certain forms of organizing space---specific
boundaries, particular places---attain the singular importance that they do
in a given historical context."574
This Section briefly surveys this context.
The words "nation" and "state" are frequently used as synonyms, de-
spite the significant difference between them. For example, the United Na-
tions actually represents the states of the world, not national groups. Simi-
larly, international relations really refers to interstate relations. Whereas a
571
Gupta & Ferguson, supra note 528, at 39.
572
Jonathan Rée, Cosmopolitanism and the Experience of Nationality, in
COSMOPOLITICS: THINKING AND FEELING BEYOND THE NATION, supra note 29, at 77, 81.
Indeed, as Rée points out, the two "national groups in Europe that have the greatest claims to
many centuries of continuous existence are, significantly, those with no securely held collec-
tive territory . . . [: the] Romanies and [the] Jews." Id. at 89 n.10.
573
See Immanuel Wallerstein, The National and the Universal: Can There Be Such a
Thing as World Culture?, in CULTURE, GLOBALIZATION AND THE WORLD-SYSTEM:
CONTEMPORARY CONDITIONS FOR THE REPRESENTATION OF IDENTITY, supra note 481, 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 conscious-
ness even later, only in the nineteenth century. It became an inescapably universal phenome-
non later still, in fact only after 1945.").
574
Gupta, supra note 3, at 194-95; see also id. at 195 ("[Only by] stepping `outside' the
nation (and the problematic of nationalism) [can we] see how nations are created and repro-
duced as a consequence of the global interstate system.").
2002] GLOBALIZATION OF JURISDICTION 443
state is an explicitly political entity based on physical dominion over a
place,575
a nation implies a "natural" ethnic or cultural unity.576
Yet, as the
last Section suggested, there is no necessary tie between culture and geo-
graphical territory. Accordingly, "[n]either nations nor states exist at all
times and in all circumstances."577
Moreover, state and nation need not evolve together. In some countries,
a formal state came into being prior to a sense of nationhood; in others, na-
tional identity may have preceded the emergence of a state structure.578
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."579
For example, the main unifying ele-
ment of the United States is not an ethnic identity but simply the fact of be-
ing born within U.S. territorial borders. 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 simi-
larity).
The history of the nation-state in the West is relatively familiar, and I
will only sketch its broad outline here.580
Pre-modern states were not based
575
Max Weber understood the state as "a human community that (successfully) claims
the monopoly of the legitimate use of physical force within a give territory." Max Weber,
Politics as a Vocation, Speech at Munich University (1918), in FROM MAX WEBER: ESSAYS
IN SOCIOLOGY 77, 78 (H.H. Gerth & C. Wright Mills eds. & trans., 1958). Ernest Gellner,
modifying Weber's definition slightly, argues that "[t]he `state' is that institution or set of in-
stitutions specifically concerned with the enforcement of order (whatever else they may also
be concerned with)." ERNEST GELLNER, NATIONS AND NATIONALISM 4 (1983). Regardless
of which definition one adopts, for our purposes the salient point is that the state is a political
(not a natural) entity.
576
See GELLNER, supra note 575, 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 asso-
ciations and ways of behaving and communicating . . . . [and] if they recognize each other as
belonging to the same nation.").
577
Id. at 6.
578
See David H. Kaplan & Guntram H. Herb, Introduction: A Question of Identity, in
NESTED IDENTITIES: NATIONALISM, TERRITORY, AND SCALE, supra note 553, at 1, 3 (noting
the disconnected evolutions of "nation" and "state").
579
Id.
580
This history is a bit distorted because it focuses on Western Europe. 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).
444 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
principally on territorial sovereignty. Indeed, medieval Europe was in some
ways an archetype for nonexclusive territorial rule; its "patchwork of over-
lapping and incomplete rights of government . . . [was] inextricably super-
imposed and tangled."581
In spite of this fragmentation, however,
"[m]edieval actors viewed themselves as the local embodiments of a univer-
sal community,"582
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 au-
thority or beliefs."583
Moreover, political power arose not from the sacro-
sanct notion of borders, but from personal allegiances between subjects and
a wide variety of authorities,584
including the Pope, the Holy Roman Em-
peror, and various nobles, kings, and clerics.585
This was a different con-
ception from that of sovereign states fixed in place.586
In this world, the so-
cial construction of space was "organised concentrically around many
centres depending upon current political affiliations, rather than a singular
centre with established territorial boundaries."587
Commentators trace the origin of modern Western territorial states to
the emergence of European mercantile capitalism in the fourteenth and fif-
teenth centuries.588
Increasing wealth in Europe resulted in larger and more
581
John Gerard Ruggie, Territoriality and Beyond: Problematizing Modernity in
International Relations, 47 INT'L ORG. 139, 149 (1993) (quoting JOSEPH R. STRAYER &
DANA C. MUNRO, THE MIDDLE AGES 395­1500, at 115 (4th ed. 1959) (internal quotations
omitted)).582
CURTIN, supra note 5, at 8 (emphasis omitted).
583
Daniel Philpott, Sovereignty: An Introduction and Brief History, 48 J. INT'L AFF.
353, 360 (1995); see also Ronald A. Brand, External Sovereignty and International Law, 18
FORDHAM INT'L L.J. 1685, 1687-88 (1995) (discussing the medieval concept of Respublica
Christiana).
584
Guntram H. Herb, National Identity and Territory, in NESTED IDENTITIES:
NATIONALISM, TERRITORY, AND SCALE, supra note 553, at 9-10.
585
See J. Samuel Barkin & Bruce Cronin, The State and the Nation: Changing Norms
and the Rules of Sovereignty in International Relations, 48 INT'L ORG. 107, 111 (1994) (not-
ing the overlapping system of medieval political jurisdictions). 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, in-
cluding control of the means of violence." ANTHONY GIDDENS, SOCIAL THEORY AND
MODERN SOCIOLOGY 170-71 (1987).
586
See WALTER ULLMANN, PRINCIPLES OF GOVERNMENT AND POLITICS IN THE
MIDDLE AGES 139 (1978) (arguing that, in the medieval period, sovereign rulers actually pos-
sessed little sovereign power). Indeed, Curtin has noted that "the word `state' did not exist in
political parlance until the 1500's." CURTIN, supra note 5, at 9 n.27. But see HEINRICH
MITTEIS, THE STATE IN THE MIDDLE AGES: A COMPARATIVE CONSTITUTIONAL HISTORY OF
FEUDAL EUROPE 3-18 (1975) (arguing that the reality of the state preexisted by several centu-
ries the conscious formulation of the modern idea of the state).
587
CURTIN, supra note 5, at 9.
588
See, e.g., GIDDENS, supra note 585, at 171 (describing a close connection between
"the ascendency to power of the bourgeoisie" and the "gradual transformation of the absolutist
2002] GLOBALIZATION OF JURISDICTION 445
complex economies, which in turn required greater central control and ad-
ministration.589
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.590
Over-
seas discoveries also spurred the development of territorially based sover-
eignty because demarcating territory allowed for exclusive and unambigu-
ous claims to possessions in the new world.591
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 in which any political
authority exercising control over territory was entitled to govern that terri-
tory without outside intervention.592
Ultimately, the Protestant Reformation weakened the central authority
of the Pope,593
bringing on the Thirty Years War, which culminated in the
Treaties of Westphalia, signed in 1648.594
Under these treaties, each coun-
state into the nation-state"); Herb, supra note 584, at 10 (noting that, around the fifteenth cen-
tury, mercantilism contributed to the shift in a territorial definition of powers); Alexander B.
Murphy, International Law and the Sovereign State: Challenges to the Status Quo, in
REORDERING THE WORLD: GEOPOLITICAL PERSPECTIVES ON THE TWENTY-FIRST CENTURY,
supra note 8, at 209, 209-10 (linking the rise of territorial sovereignty to the rise of mercantil-
ism).
589
See Jouni Häkli, Territoriality and the Rise of the Modern State, 172 FENNIA 1, 43-45
(1994) (detailing the development of state administrative branches).
590
See JEAN GOTTMANN, THE SIGNIFICANCE OF TERRITORY 36-40 (1973) (discussing
community in terms of spatial territory and identifying the declining role of religion).
591
See Herb, supra note 584, at 11 ("Overseas discoveries also revealed the advantages
of using a territorial definition of power, because it allowed for the exclusive and unambigu-
ous claims to new possessions without the need to know what these exactly entailed."). For
example, in the 1494 Treaty of Tordesillas Spain and Portugal divided their colonial spheres
using a line of longitude. SACK, supra note 479, at 131-32.
592
Murphy, supra note 588, at 210.
593
See Mark L. Movsesian, The Persistent Nation State and the Foreign Sovereign Im-
munities 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] terri-
tory,' grew out of the Protestant Reformation." (quoting Philpott, supra note 583, at 357)); see
also JACKSON, supra note 580, at 50 ("Sovereign states first came into view when medieval
Christendom fractured under the combined impact of the Renaissance and the Reformation.").
594
Westphalia Treaties, supra note 24, at 119-356. Leo Gross has called Westphalia the
"majestic portal" leading from the medieval world to modernity. Gross, supra note 24, at 10.
Others, however, have observed that Westphalia did not create a system of sovereign states ex
nihilo, but rather consolidated three hundred years of evolution toward such a system. See,
e.g., Philpott, supra note 583, at 360-64 (arguing that Westphalia "elevated" but did not create
the sovereign state). For an argument that Westphalia did not even constitute a decisive break
with the medieval order, see Stephen D. 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,
446 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
try agreed to honor each others' territorial boundaries and to refrain from
interfering with the internal affairs of another state, thereby codifying the
territorial power of individual sovereign states595
and limiting the preroga-
tives of the Pope and Emperor.596
The treaties gave states the "authority to
form alliances . . . without imperial or papal approval,"597
and the power to
determine the religions that would be practiced within their territories.598
Moreover, "as it came to be practiced," Westphalia "removed all legitimate
restrictions on a state's activities within its territory."599
Thus, the sovereign
state became the principal political unit, and the control of territory became
the primary criterion for assessing the existence of such a state.600
Subse-
quently, public international law has developed to harmonize and prevent
conflicts among these new actors in human history.601
Although Westphalia established a system of state territorial sover-
eignty, it was not until the Enlightenment that a separate conception of na-
tion 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.602
Thus, the legitimacy of modern states de-
pended on the loyalty of this territorially bounded group of people.603
Such
see generally GEOFFREY PARKER, EUROPE IN CRISIS, 1598-1648 (1979); C.V. WEDGWOOD,
THE THIRTY YEARS WAR (1938).
595
See THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 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 583, at 1688 (ex-
plaining that the 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, 271 (1978) (noting the "Westphalian emphasis on territorial sovereignty and sovereign
equality").
596
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.").
597
Movsesian, supra note 593, at 1085.
598
Although this principle of cuius regio, euis religio (whose the region, his the religion)
had been recognized in the Peace of Augsburg one hundred years earlier, it was not put into
practice until Westphalia. Philpott, supra note 583, at 363.
599
Id. at 364.
600
See CURTIN, supra note 5, at 11 ("[Westphalia] made the sovereign state the legiti-
mate political unit and implied that basic attributes of statehood such as the existence of a
government with control of its territory were the criteria for becoming a state.").
601
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.").
602
See MALCOLM ANDERSON, FRONTIERS: TERRITORY AND STATE FORMATION IN THE
MODERN WORLD 38 (1996) (discussing the contractarian notion that political authority rests
in the will of the people).
603
See CURTIN, supra note 5, at 13-14 ("Sovereignty shifted from the person of the
2002] GLOBALIZATION OF JURISDICTION 447
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.604
"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 ac-
quired a new kind of legitimacy, one premised on the ideological bedrock of
`national' rights."605
As discussed in more detail in the next Section,606
these new states used
their administrative power to encourage social cohesion and identification
with the state through the enforcement of uniform languages, the establish-
ment of compulsory education, and the institution of rhetorical and sym-
bolic efforts to erase local differences and imagine a coherent commu-
nity.607
These efforts formed the roots of nationalism, which can be defined
as a political movement seeking to unite people to a sovereign state based
on common ancestry or culture.608
Nationalism "reordered the psychologi-
monarch, identified with a `divine cosmos[,]' to the territory of the state and state institu-
tions[,] . . . and the loyalty of citizens became something that had to be won by modern states
(legitimacy).").
604
See id. at 15 ("The governing people became a transformed political subject, namely
a people of citizens which came to be identified with the Nation."); Herb, supra note 584, at
11 (discussing the development of nations and nation-states); Murphy, supra note 588, at 210
(explaining that during the Enlightment people came to be understood as "a culturally cohe-
sive community (a nation) that was entitled to control its own affairs"). It has been suggested
that this development occurred in Europe during the eighteenth century:
The French Revolution . . . marked a watershed: in its aftermath, the nation was not
just the king, his territory, and his subjects . . . . [T]he cradle of the modern nation-
state and of the principles of nationalism . . . was not strictly the country but . . . all
its people. The nation was a pact between the sovereign people and the state . . . .
HORSMAN & MARSHALL, supra note 8, at 5-6. But see ANTHONY D. SMITH, NATIONALISM
AND MODERNISM 36 (1998) (arguing that the growth of nationalism can be traced to a period
well before the onset of industrialization in many European regions).
605
Murphy, supra note 588, at 210.
606
Infra text accompanying notes 657-75.
607
See Herb, supra note 584, at 11 (discussing state enforcement of a uniform language
and compulsory education as an effort to eliminate local differences); see also John Borne-
man, State, Territory, and National Identity Formation in the Two Berlins, 1945-1995, in
CULTURE, POWER, PLACE: EXPLORATIONS IN CRITICAL ANTHROPOLOGY, supra note 3, at
93, 97 (arguing that "[c]ontemporary state narratives about a national identity are constructed
in a long conversation between states and their residents," that the state proposes a model life
course in its laws and policy statements "using tools including educational institutions, hous-
ing regulations, fiscal and monetary policy, and marital laws," and that "[t]he citizen reflects
on and responds to this model life course in everyday experiences and ritual encounters"). But
cf. SMITH, supra note 604, at 40 (cautioning against using a neo-Marxist "top-down" frame-
work whereby elites simply transmit nationalist sentiment to the "masses"); infra note 660
(discussing Smith's views on the application of neo-Marxist theory to nationalism).
608
See JOHN BREUILLY, NATIONALISM AND THE STATE 2 (2d ed. 1994) ("The term `na-
tionalism' is used to refer to political movements seeking or exercising state power and justi-
448 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
cal allegiances of Europe and gave to the state an emotional appeal it had
previously lacked."609
By fostering a sense of "belonging,"610
of shared par-
ticipation in a unique, sometimes mythical heritage,611
eighteenth and nine-
teenth century nationalism provided the basis for powerful new political
identities to replace the medieval unity of the Respublica Christiana.612
In-
deed, as one commentator has argued, the idea that nationality equals iden-
tity became a "social fact or social construction that is taken for granted, a
cognitive frame in which to threaten nationality is to threaten identity."613
Thus, political and social identity itself came to be linked powerfully with
territory.614
Nevertheless, although the American and French Revolutions provided
a context for conceiving of a territorially based "people" as a unified "na-
tion," problems arose in applying similar conceptions elsewhere. The na-
tion-state system did not track the ethnic identities of its human subjects.
Therefore, the map of the post-Westphalian Europe showed a mosaic of
fying such action with nationalist arguments."); GELLNER, supra note 575, 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 po-
litical . . . expression of a form of group identity attached to an existing state, or to a commu-
nity which is not yet a recognized nation-state but which believes that it should become
one."). For other discussions of nationalism, see ANDERSON, supra note 26; MICHAEL
BILLIG, BANAL NATIONALISM (1995); GIDON GOTTLIEB, NATION AGAINST STATE (1993);
LIAH GREENFELD, NATIONALISM (1992); E. J. HOBSBAWM, NATIONS AND NATIONALISM
SINCE 1780 (1990); MICHAEL IGNATIEFF, BLOOD AND BELONGING (1993); KOHN, supra note
594; 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. INT'L L. 359 (1996). For an essay summarizing
recent scholarship on nationalism, see Tony Judt, The New Old Nationalism, N.Y. REV.
BOOKS, May 26, 1994, at 44.
609
Movsesian, supra note 593, at 1086; see also KOHN, supra note 594, at 4 (asserting
that nationalism "changed" the state "by animating it with a new feeling of life and with a new
religious fervor"); HAROLD J. LASKI, The Foundations of Sovereignty, in THE FOUNDATIONS
OF SOVEREIGNTY AND OTHER ESSAYS 1, 15 (1921) ("Here the significance of nationality be-
came apparent, for it gave to the glorification of the state an emotional penumbra it could have
secured in no other fashion.").
610
See Alan Branthwaite, The Psychological Basis of Independent Statehood, in STATES
IN A CHANGING WORLD 46, 51 (Robert H. Jackson & Alan James eds., 1993) (discussing how
statehood gives a group a sense of security and belonging).
611
See infra text accompanying notes 633­43 (discussing the social construction of
community in the modern nation-state).
612
See STATE SOVEREIGNTY AS SOCIAL CONSTRUCT (Thomas J. Biersteker & Cynthia
Weber eds., 1996) for arguments that state sovereignty continues to be a social construction.
613
CURTIN, supra note 5, at 15; see also HORSMAN & MARSHALL, supra note 8, at 10
(noting the contemporary view that the nation-state is "natural and eternal").
614
See CURTIN, supra note 5, at 15 ("[T]he identification of citizenship with residence in
a particular territorial space became the central fact of political identity.").
2002] GLOBALIZATION OF JURISDICTION 449
sovereign powers controlling 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 the other based on territorial boundaries. Unfortunately, though these
two identities are quite distinct, they were conflated in the territorial settle-
ments following World War I, which attempted to create new nation-states
such as Czechoslovakia and Yugoslavia. In addition, the United Nations
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 majority operating within ex-
isting colonial boundaries (such as Nigeria), rather than ethnic minorities
operating within those states.615
Even this cursory survey reveals first that the idea of nation-states exist-
ing 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 nation-state 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 domin-
ion and a way of demarcating community boundaries, then it is essential
that we consider more carefully what it means to say that a coherent com-
munity exists and how such a community might be defined. This considera-
tion reveals the act of imagination necessary to equate community with state
as well as the ongoing tug-of-war between nostalgic and transformative vi-
sions of community in mediating the relationship between Self and World.
The concept of "community" is one of the most widely used in the so-
cial sciences. However, a precise definition has been predictably elusive.
Even as far back as 1955, one study compiled ninety-four social-scientific
attempts at definition and found that the only substantive overlap among
615
For an argument for the 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 INT'L LAW. 809, 811-
14 (1999).
450 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
them was that all the definitions dealt with human beings!616
To many, the word "community" conjures up Norman Rockwell-like
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 commu-
nity" or "the world community." Thus, it is not surprising that in much so-
ciological and anthropological literature, community and state are often jux-
taposed. 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 gesellschaft--the po-
litical society dominated by social relations that were artificial, contractual,
ego-focused, short-term, and impersonal.617
Tönnies viewed the small, rural
community of the past as a site of solidarity and unity, while portraying con-
temporary society as incapable of creating such bonds.618
His conception of
gemeinschaft was firmly grounded in physical proximity, where community
derives from shared territory, blood ties, and constant interaction among
community members, rather than shared values or interests.619
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 (e.g., corporations, political parties, and trade
unions).620
Other social scientists of the late nineteenth and early twentieth centu-
ries echoed this 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.621
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.622
Similarly, Emile Durkheim argued that "earlier"
communities were characterized by "mechanical solidarity," in which soci-
616
George A. Hillery, Jr., Definitions of Community: Areas of Agreement, 20 RURAL
SOC. 111, 118 (1955).
617
See FERDINAND TÖNNIES, GEMEINSCHAFT UND GESELLSCHAFT [COMMUNITY &
SOCIETY] 202-05 (Charles Loomis trans., 1988 ed.) (describing the "order of Gesellschaft").
618
See id. at 65 (contrasting the essential unity of individuals in the gemeinschaft with
the essential separation of individuals in the gesellschaft).
619
Id. at 42-44.
620
Id. at 64-65.
621
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." (emphasis omitted)).
622
See id.
2002] GLOBALIZATION OF JURISDICTION 451
ety was founded upon likeness and unable to tolerate dissimilarity.623
In
contrast, Durkheim viewed "modern" society as based on "organic solidar-
ity," in which differences are integrated into a collaborative, harmonious
whole.624
For many twentieth-century scholars, community remained a term re-
served only for pre-industrial forms of affiliation. For example, Raymond
Williams, considering the rise of modernity and its challenge to earlier con-
ceptions of community, wrote:
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.
625
Similarly, Robert Redfield attempted to define community as necessar-
ily small in scale, homogenous in both activities and states of mind, self-
sufficient, and conscious of its distinctiveness.626
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 were based in "impersonal institutions [and] what has
been called atomization of the external world."627
Other anthropologists, while perhaps not quite as nostalgic as Redfield,
have similarly viewed communities as inherently local. Ronald Franken-
berg suggested that members of a community must have common work,
economic, and religious interests.628
Such communities, in his view, require
people to live face-to-face, in a small group of people, sharing multistranded
relations with one another and maintaining a sentimental attachment to a
physical locality and the group itself.629
David Minar and Scott Greer also
623
EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 88-92 (W.D. Halls trans.,
The Free Press 1984) (1893).
624
Id. at 101-05. Nevertheless, Durkheim observed that this harmony did not yet exist.
See id. at lv (expressing the need for a "corporative institution"). In his later work, Durkheim
retreated from even this qualified stance, calling instead for new communal relationships to
counteract a modern tendency toward debilitating anomie. See EMILE DURKHEIM, SUICIDE
361-92 (John A. Spaulding & George Simpson trans., The Free Press 1951) (1897) (finding
the roots of anomie in "the lack of collective forces at certain points in society" and the "state
of disaggregation").
625
RAYMOND WILLIAMS, THE COUNTRY AND THE CITY 165 (1973).
626
ROBERT REDFIELD, THE LITTLE COMMUNITY AND PEASANT SOCIETY AND CULTURE
4 (1960).
627
Id. at 5.
628
See RONALD FRANKENBERG, COMMUNITIES IN BRITAIN 238 (1966) ("Community
implies having something in common.").
629
See id. at 237-54 (examining the concept of community and the changes in face-to-
452 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
emphasized geographical proximity.630
They argued that the realities of liv-
ing in a locale give rise to common problems, which lead to the develop-
ment of organizations for joint action and activities, which in turn produces
common attachments, feelings of interdependence, common commitment,
and increasing homogeneity.631
Even recent work by communitarian theo-
rists such as Amitai Etzioni demonstrates a similar view of community. At-
tempting to stem what he sees as the multicultural drift away from the
common values of a liberal democracy, Etzioni clings to the notion that
communities of the past shared common beliefs and values and asks con-
temporary members of society to recommit to those commonalities.632
These ideas of community do not fit comfortably with the sprawling na-
ture of the modern industrialized state. 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 governmental power but as somehow
bound to the other subjects within one community. Benedict Anderson
therefore refers to nation-states as "imagined communities"--"imagined be-
cause 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."633
This formulation does not imply that such imagined communities are
somehow "false" or "fabricated" in a negative sense.634
Anderson argues
that all communities larger than "primordial villages" (and perhaps even
those) are imagined.635
Thus, nation-states are not illegitimate just because
face relationships); see also NIGEL RAPPORT & JOANNA OVERING, SOCIAL AND CULTURAL
ANTHROPOLOGY 61 (2000) (discussing Frankenberg's and other theorists' approaches to
community).
630
See DAVID MINAR & SCOTT GREER, THE CONCEPT OF COMMUNITY 47 (1969)
("[P]lace is important to community for certainly most of the social systems to which we
would apply the concept [of community] are geographic entities of one sort or another.").
631
See id. (discussing the effects of living in the same locale).
632
See AMITAI ETZIONI, THE SPIRIT OF COMMUNITY 253-67 (1994) (articulating the
rights and social responsibilities of individuals under a communitarian vision of society).
633
ANDERSON, supra note 26, at 6; see also ERNEST GELLNER, THOUGHT AND CHANGE
168 (1964) ("Nationalism is not the awakening of nations to self-consciousness: it invents
nations where they do not exist . . . ." (emphasis added)).
634
Some commentators have a more negative view of the way in which nationalist
movements fabricate many of the "traditions" they purport to restore. See, e.g., FRANCIS
FUKUYAMA, THE 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 that rely on notions of "imagined community" and "invented traditions").
635
See ANDERSON, supra note 26, at 6 (suggesting that even communities characterized
by "face-to-face contact" are imagined).
2002] GLOBALIZATION OF JURISDICTION 453
their inhabitants imagine and construct psychological bonds of affiliation.
Nevertheless, the fact that those bonds are constructed means that they are
neither natural nor inevitable; they are merely one particular way of imagin-
ing community among many.
This is a very different vision of community. Rather than a reified,
natural structure in the relations among people, Anderson (as well as other
theorists636
) focus on the ways conceptions of "community" are constructed
within social life, on how membership in a community is marked and attrib-
uted, and on how notions of community are given meaning.637
Thus, com-
munity formation is viewed as a psychological process, not as a naturally
occurring phenomenon based on external realities.638
Significantly, without this kind of expanded vision of community there
is no way to conceptualize a nation-state as a community. Yet at the same
636
Social psychological research on group identities, which indicates that groups do not
exist because of external factors but only because of members' identification with the group,
echoes this symbolic understanding of community. See HENRI TAJFEL, HUMAN GROUPS AND
SOCIAL CATEGORIES 229 (1981) (relying on a definition of intergroup community based on
whether people feel they are a group). According to this research, the process of group identi-
fication proceeds in three stages: First, individuals categorize themselves as part of an in-
group, 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 behaviour becomes more normative as their cate-
gory membership becomes salient." MICHAEL A. HOGG & DOMINIC ABRAMS, SOCIAL
IDENTIFICATIONS: A SOCIAL PSYCHOLOGY OF INTERGROUP RELATIONS AND GROUP
PROCESSES 172 (1988).
637
See RAPPORT & OVERING, supra note 629, at 62 (discussing modern anthropological
views regarding community). In a similar vein, Gregory Bateson and Jurgen Ruesch argued
that the relationship between "individual," "family," "community," "nation," and world can
best be understood through a study of the social and psychological processes of human com-
munication. See GREGORY BATESON & JURGEN RUESCH, COMMUNICATION: THE SOCIAL
MATRIX OF PSYCHIATRY 5 (1951) ("[C]ommunication is the only scientific model which en-
ables us to explain physical, intrapersonal, interpersonal, and cultural aspects of events within
one system."). Likewise, Fredrik Barth observed that social groups are not naturally joined as
communities; they achieve an identity by defining themselves as different from other groups
and by erecting boundaries between them. See FREDRIK BARTH, Introduction to ETHNIC
GROUPS AND BOUNDARIES 9, 15 (Fredrik Barth ed., 1969) ("The boundaries to which we
must give our attention are of course social boundaries . . . ."). Anthony Cohen extended
Barth's critique, arguing that community must be seen as a symbolic construct, not a natural
one. See ANTHONY P. COHEN, THE SYMBOLIC CONSTRUCTION OF COMMUNITY 14 (1985)
(discussing the "essentially symbolic nature of the idea of community itself"). In Cohen's
vision, community derives 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. Id. at 98.
638
See, e.g., Gupta & Ferguson, supra note 529, at 13 (arguing that "community" is "a
categorical identity that is premised on various forms of exclusion and constructions of other-
ness").
454 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
time, if communities are based not on fixed attributes like geographical
proximity, shared history, or face-to-face interaction, but instead on sym-
bolic identification and social psychology, then there is no intrinsic reason
to privilege nation-state communities over other possible community identi-
fications that people might share. These other identifications will be ex-
plored 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 dis-
tinct imagined features. First, the nation is imagined as limited, with finite
boundaries.639
He argues that "[n]o nation imagines itself coterminous with
mankind. The most messianic nationalists do not dream of a day when all
the members of the human race will join their nation."640
Second, the nation
is imagined as sovereign in order to replace the divinely ordained dynas-
639
For example, a comparison of medieval and modern maps indicates very different
conceptions of boundaries and place-ness. The older maps tend to depict Jerusalem at the
center, ROBERTS, supra note 552, at 128; 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 but seem to treat boundaries as relatively insig-
nificant, see BILLIG, supra note 608, at 20 ("Mediaeval maps represent a world unobsessed
with boundaries."). Kingdoms and empires are depicted in general areas, and little effort is
made to define the precise point where one begins and the other ends. See ROBERTS, supra
note 552, at 127-30 (reviewing the features of medieval maps). In contrast, the modern map,
like the modern conception of sovereignty, is firmly territorial, with precisely drawn bounda-
ries. See BILLIG, supra note 608, at 20 (recognizing that modern maps depict the world as
territorially divided).
Moreover, the evidence seems to indicate that the lack of clear territorial boundaries was
not only part of medieval map making but of medieval consciousness as well. As one com-
mentator points out, medieval Europe consisted of a series of small overlapping power struc-
tures with no single authority controlling a "clear-cut territory or the people within it." Mi-
chael Mann, European Development: Approaching a Historical Explanation, in EUROPE AND
THE RISE OF CAPITALISM 6, 11 (Jean Baechler et al. eds., 1988). In addition, medieval mon-
archs tended to divide their estates among their heirs, meaning that territories would often
change shape with each new generation. See BILLIG, supra note 608, at 20 (discussing the
transitory nature of territorial boundaries in medieval Europe). The feudal structure rested on
loyalties to local lords, not to distant monarchs, and if kings raised armies, they did so through
the local lords. See id. (discussing the methods by which kings raised armies). Not surpris-
ingly, the mass of inhabitants of what is now France or England did not think of themselves as
English or French and had little conception of a territorial nation-state to which they owed
allegiance. See, e.g., 1 FERNAND BRAUDEL, THE IDENTITY OF FRANCE (HISTORY AND
ENVIRONMENT) 18 (Siân Reynolds trans., Collins 1988) (1986) (arguing that "the modern no-
tion of la patrie, the fatherland, had scarcely appeared in the sixteenth century"); HUGH
SETON-WATSON, NATIONS AND STATES: AN ENQUIRY INTO THE ORIGINS OF NATIONS AND
THE POLITICS OF NATIONALISM 25-30 (1977) ("One can hardly speak of an English or a
French nation before the thirteenth century . . . .").
640
ANDERSON, supra note 26, at 7.
2002] GLOBALIZATION OF JURISDICTION 455
ties641
that began to give way to modern states in the period of the Enlight-
enment and afterwards.642
Third, the nation is imagined as a community:
[R]egardless 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 lim-
ited imaginings.
643
Thus, Anderson highlights the social, historical, and psychological forces
that construct conceptions of nationhood.
Moreover, even in seemingly less multiethnic states, the composition of
a nation appears to be a political, rather than a natural, process. Although
many commentators have assumed that countries such as China, Korea, and
Japan are ethnically homogenous,644
recent scholarship has challenged this
claim. For example, one study argues that Japanese identity and much of
Japanese officialdom have evolved through interaction with both internal
others (minorities) and external others (foreigners), who were just as impor-
tant for Japanese self-identification as were internal "cultural" construc-
641
According to Anderson, it is no coincidence that the eighteenth century, with its ra-
tionalist secularism and its challenge to divine rule, was also the century when nationalism
arose. While stopping just short of drawing a causal link between the decline of religious be-
lief and the rise of nationalism, see id. at 12 ("I am not claiming that the appearance of nation-
alism towards the end of the eighteenth century was `produced' by the erosion of religious
certainties, or that this erosion does not itself require a complex explanation."), Anderson does
argue that the "[d]isintegration of paradise" required "a secular transformation of fatality into
continuity, contingency into meaning. . . . [F]ew things were (are) better suited to this end
than an idea of nation," id. at 11.
642
See id. (stating that the Enlightenment marked "the dawn of the age of nationalism").
Anderson 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." Id. at 19. Thus, since states were de-
fined by their centers, "borders were porous and indistinct, and sovereignties faded impercep-
tibly into one another." Id. According to Anderson, this loose sense of territoriality helps to
explain how "pre-modern empires and kingdoms were able to sustain their rule over im-
mensely heterogeneous, and often not even contiguous, populations for long periods of time."
Id. In contrast, modern state sovereignty is "fully, flatly, and evenly operative over each
square centimetre of a legally demarcated territory." Id. 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." GIDDENS, supra note 585, at 171-72. Indeed, according to
Giddens, although all states seem to have been associated with territoriality, "[w]hat is spe-
cifically 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.
643
ANDERSON, supra note 26, at 7.
644
See, e.g., HOBSBAWM, supra note 608, at 66 ("China, Korea and Japan . . . are indeed
among the extremely rare examples of historic states composed of a population that is ethni-
cally almost or entirely homogeneous.").
456 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
tions.645
Similarly, movements to define distinctive features of Japanese
culture and identity were launched in the 1970s and 1980s in opposition to
Western influence because the business and administrative elite were con-
cerned about too little Japanese homogeneity.646
So, how is national community formed? Anderson traces the ascen-
dancy of the nation-state to the development of what he calls "print-
capitalism."647
He argues that the old orders of religiously unified commu-
nities, divinely determined monarchs, and static cosmologies were slowly
challenged by "the impact of economic change, `discoveries' (social and
scientific), and the development of increasingly rapid communications."648
According to Anderson, the new order of print-capitalism "made it possible
for rapidly growing numbers of people to think about themselves, and to re-
late themselves to others, in profoundly new ways."649
Anderson argues that the development of the printing press and the rela-
tive ease with which literary works came to be disseminated laid the basis
for national consciousness in three distinct ways. First, the spread of printed
languages meant that there were "unified fields of exchange" operating "be-
low" Latin, but "above" the locally distinct spoken vernaculars.650
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 con-
versation, became capable of comprehending one another via print and pa-
per."651
In the process, according to Anderson, 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.652
Newspapers enabled the nation to
be represented by the juxtaposition of stories from different "parts," which
645
See Emiko Ohnuki-Tierney, A Conceptual Model for the Historical Relationship Be-
tween 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 (Dru C. Gladney ed.,
1998) [hereinafter MAKING MAJORITIES] (examining the relationships between Japanese ma-
jority groups and foreigners).
646
See Kosaku Yoshino, Culturalism, Racialism, and Internationalism in the Discourse
on Japanese Identity, in MAKING MAJORITIES, supra note 645, at 13, 13 (linking the "resur-
gence of cultural nationalism" to "the vast number of publications that the Japanese cultural
elites produced to define and redefine the distinctiveness of Japanese society, culture, and na-
tional character").
647
See ANDERSON, supra note 26, at 36 (suggesting that print-capitalism offered a "new
way of linking fraternity, power and time meaningfully together").
648
Id.
649
Id.
650
Id. at 44.
651
Id.
652
Id.
2002] GLOBALIZATION OF JURISDICTION 457
were then assimilated within one polity.653
The newspaper also allowed the
nation to differentiate itself from others by the presentation of "interna-
tional" and "foreign" news as something separate from "domestic" or "na-
tional" news.654
Second, according to Anderson, the rise of print-capitalism
allowed languages to become more fixed, therefore further cementing iden-
tity based on shared linguistic tradition.655
Third, Anderson argues that
those vernaculars that were closest to the print languages rose in status and
began to form something approaching an "official" language that would be
understood by a broader group.656
Other theorists have explored the myriad ways in which national identi-
fication, 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.657
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.
658
Thus, 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,659
the state itself often op-
653
Id.
654
See BILLIG, supra note 608, at 118-19 (describing the way in which newspapers seg-
regate the news "so that nationhood operates . . . as a context for awareness").
655
See ANDERSON, supra note 26, at 44-45 (arguing that because "the printed book kept
a permanent form," nations could create "that image of antiquity so central to the subjective
idea of the nation").
656
See id. at 45 (observing that "[c]ertain dialects inevitably were `closer' to each print-
language and dominated their final forms").
657
See generally BILLIG, supra note 608 (examining the powerful presence of national-
ism in everyday life).
658
Id. at 8. Similarly, Gupta has observed:
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, con-
stitutions 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.
Gupta, supra note 3, at 185.
659
See BILLIG, supra note 608, at 5 (observing that both popular and academic writings
associate nationalism "with those who struggle to create new states or with extreme right-
wing politics," so that "[a]ccording to customary usage, [the American President] is not a na-
tionalist; but separatists in Quebec or Brittany are; so are the leaders of extreme right-wing
458 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
erates 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."
Accordingly, we believe that "[t]he separatists, the fascists and the guerrillas
are the problem of nationalism. The ideological habits, by which `our' na-
tions are reproduced as nations, are unnamed and, thereby, unnoticed."660
In response to the inherently imagined nature of their existence, nations
make claims upon something called national "identity." Such national iden-
tity is formed through self-categorization: articulating attributes that make
"us" of one group different from "them" in another group.661
One such at-
parties such as the Front National in France").
660
Id. at 6. Anthony D. Smith has argued that some scholarship on nationalism relies
too much on a "top down" method whereby elites manipulate "the people" into feelings of
nationalist identification. SMITH, supra note 604, at 95-96. Instead, Smith argues that "[t]he
passion that the nation could evoke, especially in time of danger, the sacrifices it could com-
mand from `the poor and unlettered' as well as the middle classes, cannot be convincingly
explained by the propaganda of politicians and intellectuals, or the ritual and pageantry of
mass ceremonies." Id. at 130. While I believe Smith's objection to be valid, my argument
here (and Billig's as well, I think) is not that the masses are manipulated by some devious el-
ites 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 nation-
alism seem to have less weight with regard to Billig's more Foucauldian approach.
661
See BILLIG, supra note 608, at 60-61 (observing that feeling patriotic about one's
nation requires preexisting assumptions about 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 so-
cial psychology. Indeed, on the first page of Nations and Nationalism, Gellner asserts that
"[n]ationalism is primarily a political principle, which holds that the political and the national
unit should be congruent." GELLNER, supra note 575, at 1. According to Gellner, nationalism
cannot exist as a concept unless it is taken for granted that the state is the legitimate political
entity. See id. at 4 (opining that "nationalism emerges only in milieux in which the existence
of the state is already very much taken for granted"). Accordingly, the national state becomes
linked with a national culture that comes to be seen as the "natural repositor[y] of political
legitimacy." Id. at 55. 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 be-
tween 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 118 (1985)
("A `nation' . . . only exists when a state has a unified administrative reach over the territory
over which its sovereignty is claimed."). He defines the nation-state as "a set of institutional
forms of governance maintaining an administrative monopoly over a territory with demar-
cated boundaries (borders), its rule being sanctioned by law and direct control of the means of
internal and external violence." Id. at 121. In Giddens's view, the nation-state is a "bounded
power-container": fixed boundaries and ability to wreak official violence are its key attrib-
utes. Id. at 120. He argues, moreover, that nation-states cannot exist in isolation, but only as
part of a worldview that sees "a complex of other nation-states" knitted together in a world
system. GIDDENS, supra note 585, at 171.
Accordingly, we have a system of nations who go to war against each other. "In this new
2002] GLOBALIZATION OF JURISDICTION 459
tribute is the telling of a unified national "history." Indeed, it is no coinci-
dence that the ascendency of nation-states was accompanied by the creation
of national historical tales662
and the rise of the professional historian.663
These state-funded historians were a mechanism by which states bolstered
their power and integrated linguistically and ethnically diverse popula-
tions.664
Thus, as Edward Said has made clear, nation-states are interpretive
communities as well as imagined ones.665
For example, when Scots get together to celebrate their national iden-
tity, they appear to be steeped in tradition, with men wearing kilts, each clan
having its own tartan, and bagpipes wailing.666
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 Revolu-
world of nations-at-war, 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 608, at 21. Rather,
local warlords appear in places where state authority has disappeared. See id. (pointing to
Beirut and Somalia as examples of states where warlords have emerged). Finally, the geo-
graphical boundedness of nations and the nation-state's monopolization of violence are both
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 ways
of doing so.
662
See, e.g., LINDA COLLEY, BRITONS: FORGING THE NATION 1707-1837, at 5-6 (1992)
(describing the "invention" of a British national identity in the eighteenth and early nineteenth
centuries); Eric Hobsbawm, Introduction: Inventing Traditions, in THE INVENTION OF
TRADITION 1, 1 (Eric Hobsbawm & Terence Ranger eds., 1983) ("`Traditions' which appear
or claim to be old are often quite recent in origin and sometimes invented.").
663
See Friedland & Boden, supra note 496, 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.").
664
See id. (observing that "historians were funded by the state, which saw the creation of
a `national' history as a way to bolster its power and integrate linguistically and culturally di-
verse populations under its control").
665
See EDWARD W. SAID, THE WORLD, THE TEXT, AND THE CRITIC 11 (1983) (tying the
state to "the entire matrix of meanings we associate with `home,' belonging and community");
see also Friedland & Boden, supra note 496, at 10 ("[T]erritorial historicity is the core of the
nation-state's legitimacy and an element in the narrative of modernity."); Gupta, supra note 3,
at 191 ("[Nationalism is] a distinctively modern cultural form [that] attempts to create a new
kind of spatial and mythopoetic metanarrative . . . ."). Such national histories "tell of a people
passing through time--`our' people, with `our' ways of life, and `our' culture." BILLIG, supra
note 608, at 71. See generally MARGARET WETHERELL & JONATHAN POTTER, MAPPING THE
LANGUAGE OF RACISM: DISCOURSE AND THE LEGITIMATION OF EXPLOITATION (1992) (dis-
cussing the use of discourse in studying racism). Pop cultural forms may also tell nationalist
histories. See, e.g., PURNIMA MANKEKAR, SCREENING CULTURE, VIEWING POLITICS: AN
ETHNOGRAPHY OF TELEVISION, WOMANHOOD, AND NATION IN POSTCOLONIAL INDIA 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).
666
Hugh Trevor-Roper, The Invention of Tradition: The Highland Tradition of Scot-
land, in THE INVENTION OF TRADITION, supra note 662, at 15, 15.
460 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
tion.667
Indeed, the short kilt was invented by an English industrialist to al-
low Highlanders to work in factories.668
Moreover, Anthony Giddens ob-
serves that even the notion of a "tradition" is itself the product of modernity.
In medieval times, by contrast, there was no separate conception of tradition
"precisely because tradition and custom were everywhere."669
Thus, the
idea of a traditional national culture is an imagined narrative, passed on like
an inheritance from one generation to the next.670
Through such an inven-
tion of tradition, the nation becomes conceptualized in kinship terms: the
nation is a "family" passing down identity over time, living in the "mother-
land" or "fatherland."671
This reference to land brings forth a final crucial attribute in the imagin-
ing of a national community: the idea of a homeland. Indeed, this tie be-
tween 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 commu-
nal distinctiveness `in the specific history of the group, and, above all, in the
myths of group origins and group liberation.'"672
Nationhood, however, re-
quires the added element of place. Thus, what makes a nation-state distinc-
tive is the imagining of an overall "country" in which lived-in localities are
united within a wider homeland. The inhabitants of that homeland will gen-
erally be personally familiar with only a small part of the land, but the na-
tion is conceived as a totality. Thus, of necessity it must be imagined as a
totality, rather than directly apprehended. Yet, again and again, these "im-
ages of virgin territories, self-evident boundaries, and datable original occu-
pation turn out to be mere mirages: territorial claims become more obscure,
not clearer, the further you dig into their past."673
667
See id. (characterizing the concept of a distinct Highland tradition as a retrospective
invention).
668
Id. at 21-22.
669
GIDDENS, supra note 7, at 57.
670
See Étienne Balibar, Is There a `Neo-Racism'?, in ÉTIENNE BALIBAR & IMMANUEL
WALLERSTEIN, RACE, NATION, CLASS: AMBIGUOUS IDENTITIES 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 MARTIN BARKER, THE
NEW RACISM: CONSERVATIVES AND THE IDEOLOGY OF THE TRIBE (1981); TEUN A. VAN
DIJK, ELITE DISCOURSE AND RACISM (1993).
671
See NIRA YUVAL-DAVIS, GENDER & NATION 15 (1997) (arguing that in a "natural-
ized image of the nation, . . . nations not only are eternal and universal but also constitute a
natural extension of family and kinship relations"); Gary R. Johnson, In the Name of the Fa-
therland: An Analysis of Kin Term Usage in Patriotic Speech and Literature, 8 INT'L POL.
SCI. REV. 165, 168-71 (1987) (discussing the use of terms such as "motherland" and "father-
land" "to inspire in the listener or reader a feeling of unity with his or her fellow citizens").
672
BILLIG, supra note 608, at 74 (citation omitted) (quoting ANTHONY D. SMITH, THE
ETHNIC REVIVAL 65 (1981)).
673
Rée, supra note 572, at 81; see also Sheldon Pollock et al., Cosmopolitanisms, 12
2002] GLOBALIZATION OF JURISDICTION 461
Finally, as the social psychological literature 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 collectiv-
ities. To be part of a community is to be positioned as a particular kind of sub-
ject, similar to others within the community in some crucial respects and dif-
ferent from those who are excluded from it.
674
For some nations, the claim to ancient roots will often involve the nostalgic
invocation of a continuous chain of racial inheritance deriving from an
imagined, biologically pure past.675
For others, it will be founded in stories
about exceptionalism: that which makes our nation superior to all others on
the planet. In either case, the imagined community of the nation-state is
very different from the localism of the small agrarian community discussed
earlier.
Thus, we see again that the nation-state is a particular type of imagined
community, one that could not have existed prior to modernity and the in-
creasing awareness of an international system. The nation-state, socially
constructed and historically contingent, is only one way of parsing the mod-
ern world, however. In the next Section, I will consider several alternative
visions.
D. Conceptions of Subnational, Transnational, Supranational,
and Cosmopolitan Identities
Although nation-states have become the dominant form of organizing
space in the contemporary world, there are other ways of imagining com-
munity and constructing identity. As we have seen, not only are processes
of place-making always contested and unstable, but relations between places
are continuously shifting as a result of the political and economic reorgani-
zation 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."676
Thus, we need to look at nation-state sovereignty against the
PUB. CULTURE 577, 579 (2000) ("Pakistan[,] . . . while definitely imagined from as early as
the 1920s as a homeland for the Muslims of the Indian subcontinent, had only the vaguest
geographical referent for a long time in its career as a concept.").
674
Gupta & Ferguson, supra note 529, at 17.
675
Rée, supra note 572, at 81.
676
Austin Sarat & Stuart A. Scheingold, State Transformation, Globalization, and the
Possibilities of Cause Lawyering: An Introduction, in CAUSE LAWYERING AND THE STATE IN
462 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
backdrop of alternative transnational, international, or subnational identities,
as well as possible ways of imagining community that are not based on
physical territory at all.677
As Akhil Gupta has pointed out, "[t]he 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.'"678
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; affiliations that form around specific functions or activities, such
as water regions, geographical areas, block associations, bowling leagues,
religious institutions, and schools; or commonalities that derive from a pur-
ported 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 of-
ten spatially localized and therefore may play a more tangible role in every-
day 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 politi-
cal identifications in the wake of the Soviet Union's collapse and the inter-
nationalization of economic activity.679
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 at-
omization that modern capitalism has wrought on their lives and to free
themselves from domination by `alien' elites."680
Thus, Richard Falk sug-
gests that one response to economic globalization is a form of "backlash
politics that looks either to some pre-modern traditional framework as vi-
able and virtuous . . . or to ultra-territorialists that seek to keep capital at
home and exclude foreigners to the extent possible."681
These responses
tend to emphasize a "sacred religious or nationalist community of the saved
A GLOBAL ERA 3, 3 (Austin Sarat & Stuart Scheingold eds., 2001) [hereinafter CAUSE
LAWYERING].
677
Gupta & Ferguson, supra note 529, at 17; see also Gupta, supra note 3, at 181
("[W]e 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.").
678
Gupta, supra note 3, at 193.
679
See, e.g., HORSMAN & MARSHALL, supra note 8, at 185 (explaining the increasingly
global nature of economic transactions).
680
Id.
681
RICHARD FALK, PREDATORY GLOBALIZATION 142 (1999).
2002] GLOBALIZATION OF JURISDICTION 463
that is at war with an evil `other,' either secularist or outsider."682
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 na-
tion-state loses authority. Thus, for example, the dissolution of Yugoslavia
quickly degenerated into tribalism and a war waged among people allied to
various imagined ethnic and historical communities.683
If every nation-state
is multiethnic at least to some degree, then constructed communities along
those ethnic cleavages will always be available.
We might also view subnational communities 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.
Robert Putnam recently has argued that the decline of bowling leagues and
other localized civic group activities in the United States is a serious prob-
lem that has harmed the American polity.684
According to Putnam, such
groups foster the development of "social networks and the norms of recip-
rocity and trustworthiness that arise from them."685
Without these social
networks, Putnam argues, core societal institutions suffer.686
Those promoting 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
in which communities might respond to global problems such as income
inequality or environmental degradation. First, in the realm of formal poli-
tics, he suggests that various forms of civic, business, governmental, and
donor groups might collaborate to develop regional initiatives for economic
development or natural resources management.687
Second, in the economic
realm, subnational coalitions can help markets "work to the benefit of
682
Id. The Islamic fundamentalist regimes in Iran, Algeria, and Afghhanistan in recent
years are examples of the backlash Falk describes. See, e.g., GIDDENS, supra note 7, at 66
("One might think that fundamentalism has always existed. This is not so--it has arisen in
response to the globalising influences we see all round us.").
683
See HORSMAN & MARSHALL, supra note 8, at 188 (describing the return to tribal rule
in Yugoslavia after the collapse of the Soviet bloc).
684
See 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.").
685
Id. at 19.
686
See id. at 288-89 (arguing that social capital built from local groups "allows citizens
to resolve collective problems more easily," provides the trust required for economic transac-
tions, and serves as a conduit for the free flow of information necessary to a functioning de-
mocracy).
687
See EDWARDS, supra note 7, at 136.
464 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
smaller [communities] by reducing the benefits that are siphoned off by in-
termediaries."688
Accordingly, "peasant foresters in Mexico [have begun] to
negotiate higher prices directly with the 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.689
According to
Edwards, collective community action of this sort "stimulates both equity
and efficiency, and builds a sense of solidarity among people who are shar-
ing risks as well as benefits."690
Finally, he argues that local pressure
groups, membership associations, and specialized authorities are essential to
"build the preconditions for democracy by injecting a wider range of views
and voices into the political arena."691
Similarly, Richard Falk advocates "globalization-from-below" as the
best response to "globalization-from-above."692
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.693
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.694
Nevertheless, though these
subnational affiliations have
had some success,695
Falk ultimately concludes that transnational civil soci-
688
Id. at 151.
689
Id. (citation omitted); 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 the quality of
their natural environment through collaboration and mediation involving producer organiza-
tions, non-governmental organizations, and advisers); CHICO MENDES, FIGHT FOR THE
FOREST 10-27 (1989) (describing how rural Brazilian rubber tappers formed a union to effect
political, social, and economic change).
690
EDWARDS, supra note 7, at 151.
691
Id. at 178.
692
See FALK, supra note 681, at 127-36 (comparing top-down hierarchical politics with
bottom-up participatory politics).
693
See id. at 143 ("This green movement often exhibited tactical brilliance in its moves
to expose the deficiencies of global trends, especially their dangers to the environment.").
694
See id. (explaining how specific incidents have spurred local populations to act to
protect their way of life or income).
695
See, e.g., BRUCE RICH, MORTGAGING THE EARTH: THE WORLD BANK,
ENVIRONMENTAL IMPOVERISHMENT, AND THE CRISIS OF DEVELOPMENT 283-93 (1994) (de-
scribing ways in which "local populations long marginalized from the grand narrative of mod-
ern history are mobilizing to defend ecological balance and fight against the destruction of
resources upon which their survival depends"); Vandana Shiva, People's Ecology: The
2002] GLOBALIZATION OF JURISDICTION 465
ety efforts are likely to be even more effective.696
2. Transnational Communities
Turning to such transnational affiliations, we can differentiate them
from international affiliations 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.697
"[T]he global capitalist system in-
creasingly operates on bases other than [the] national, and effective means
of asserting political control over the transnational economy and of requir-
ing [transnational corporations] to be accountable to political institutions
have yet to be developed."698
Cities were once used as trading centers to
connect firms. In that context, "[m]arket geographies were so powerful that
what was produced was determined by where it was produced."699
Now, it
is corporate geography, rather than territorial geography, that determines
what is produced and where. "Because of their newfound capacity to in-
stantaneously coordinate production and distribution around the globe, to
downsize and subcontract, factories and firms have lost their dependence on
particular cities or regions."700
Examples of such transnational corporate activity abound. Indeed, the
volume of production by transnational corporations outside their "home
bases" now exceeds the volume of all world trade, indicating that trade
within firms, rather than among them, is a growing proportion of world
commerce.701
Sales figures for many transnationals rank higher than the
Chipko Movement, in TOWARDS A JUST WORLD PEACE: PERSPECTIVES FROM SOCIAL
MOVEMENTS 253 (Saul H. Mendlovitz & R.B.J. Walker eds., 1987) (discussing the emer-
gence of grassroots ecological movements in India).
696
See FALK, supra note 681, at 143-44 (opining that transnational organizations such as
Greenpeace will likely be most successful in effecting change).
697
Cf. Sarat & Scheingold, supra note 676, at 5 ("[T]he hallmark of globalization as it is
generally understood is the worldwide spread of corporate capitalism and neoliberal values."
(citation omitted)).
698
HORSMAN & MARSHALL, supra note 8, at 172.
699
Friedland & Boden, supra note 496, at 12.
700
Id. at 13; see also Donald A. Palmer & Roger Friedland, Corporation, Class and City
System, in INTERCORPORATE RELATIONS 145, 147 (Mark S. Mizruchi & Michael Schwartz
eds., 1987) (arguing that corporate elites are the dominant force in creating intracity links).
701
See HORSMAN & MARSHALL, supra note 8, at 201 (explaining that transnational cor-
porations produce more goods abroad than in their home countries).
466 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
gross domestic products of some countries.702
And because money can so
easily be transferred through global capital markets around the world,703
central banks are severely limited in their ability to affect national monetary
policy.704
Regional trading blocs and free-trade zones create another form of
transnational economic space that is both related to geography and yet be-
yond the bounds of nation-states. These zones have proliferated in recent
years.705
Although NAFTA is perhaps the most familiar to Americans,
trade groups now exist in South America706
and Southeast Asia707
(not to
mention the European Union itself), and others cut across even regional
identification.708
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."709
Arjun Appadurai high-
702
See U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 32 tbl.1.1 (1999) (col-
lecting statistics).
703
Cf. Ted C. Fishman, The Joys of Global Investment, HARPER'S, Feb. 1997, at 35, 36
("[T]he desire for international stocks remains so strong that nearly every American investor
owns them . . . .").
704
See, e.g., SASKIA SASSEN, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF
GLOBALIZATION, at xi-xii (1996) (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"); 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"); 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.").
705
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 illustrating the growth of
trade within regional free-trade associations).
706
The Andean Community (CAN) includes Bolivia, Colombia, Ecuador, Peru, and
Venezuela. Who Are We?, Andean Community, at http://
www.comunidadandina.org/ingles/who.htm (last visited Nov. 18, 2002).
707
The Association of Southeast Asian Nations (ASEAN) includes Brunei, Cambodia,
Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam.
Member Countries, Association of Southeast Asian Nations, at http://
www.aseansec.org/74.htm (last visited Nov. 18, 2002).
708
For example, the Asia-Pacific Economic Cooperation group (APEC) includes Austra-
lia, Brunei, Canada, Chile, China, Hong Kong, Indonesia, Japan, Korea, Malaysia, Mexico,
New Zealand, Papua New Guinea, Peru, the Philippines, Russia, Singapore, Taipei, Taiwan,
Thailand, the United States, and Vietnam. Member Economies, Asia-Pacific Economic Coop-
eration, at http://www1.apecsec.org.sg (last visited Nov. 18, 2002).
709
Gupta, supra note 3, at 193-94.
2002] GLOBALIZATION OF JURISDICTION 467
lights international fashion as one field in which the global impact goes far
beyond "cross-national-style cannibalism" to the "systematic transnational
assemblage[] of production, taste transfer, pricing, and exhibition."710
Elsewhere, we see concerns about the impact of American food, clothing, or
mass entertainment and the postcolonial imposition of homogenized taste
that were so memorably captured by Benjamin Barber in the title of his
1995 book, Jihad vs. McWorld.711
Nevertheless, in many areas it is increasingly difficult to define corpo-
rate activity with a particular national moniker. Even leaving aside transna-
tional 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? Do jobs created by Japanese
plants in the United States reflect the health of the American economy or
the Japanese economy?712
Does a film released by the Sony corporation
(nominally Japanese) represent American mass culture?
Moreover, the modern corporation, the central bank, the free-trade re-
gion, and the global commodities market form only one area in which trans-
national affiliation has become significant. The impact of transnationalism
is far broader. Indeed, looking more closely, we can see a wide variety of
"complex, postnational social formations."713
Simply listing examples gives
a sense of the scope. Diaspora communities play an increasing role in the
globalization of capital.714
Transnational philanthropic movements such as
710
Arjun Appadurai, Patriotism and Its Futures, in MODERNITY AT LARGE: CULTURAL
DIMENSIONS OF GLOBALIZATION, supra note 7, at 158, 167.
711
BENJAMIN BARBER, JIHAD VS. MCWORLD (1995). On the other hand, Aihwa Ong
has argued that globalization has not led to cultural homogenization:
The dispersal of Coke, McDonald's 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 dif-
ference is superbly consonant with marketing designs for profit making.
AIHWA ONG, FLEXIBLE CITIZENSHIP: THE CULTURAL LOGICS OF TRANSNATIONALITY 10
(1999). For further discussion of this "cultural imperialism" question, see IEN ANG, LIVING
ROOM WARS: RETHINKING MEDIA AUDIENCES FOR A POSTMODERN WORLD (1996); Stuart
Hall, Cultural Identity and Diaspora, in IDENTITY: COMMUNITY, CULTURE, DIFFERENCE 222
(J. Rutherford ed., 1990); Hannerz, supra note 533.
712
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).
713
Appadurai, supra note 7, at 167; see also id. ("These formations are now organized
around principles of finance, recruitment, coordination, communication, and reproduction that
are fundamentally postnational and not just multinational or international.").
714
See, e.g., Chander, supra note 562, at 1060-74 (describing a debt instrument offered
by a homeland government to raise capital principally from its diaspora); id. at 1012 n.29
(summarizing a World Bank report on diasporas' important role in facilitating the dissemina-
468 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
Habitat for Humanity send volunteers around the globe to build new envi-
ronments.715
The emergence of a diffuse, overarching European identity,
while not replacing national identification, has begun to create "`a shift to-
wards multiple loyalties, with the single focus on the nation supplanted by
European and regional affiliations above and below.'"716
Global public pol-
icy networks, ranging in subject matter from crime to fisheries to public
health, have emerged during the past decade, bringing together loose alli-
ances of government agencies, international organizations, corporations, and
NGOs.717
In addition, such global public policy networks form only one part of a
"nascent international civil society"718
that includes NGOs; business and
trade union networks; and cooperative efforts of government actors includ-
ing banking regulators, law-enforcement officials, intelligence agencies, ju-
diciaries, and other local authorities.719
Such civil society initiatives func-
tion sometimes as an aspect of globalization by challenging nation-state
sovereignty, particularly with regard to human rights norms, and other times
tion of information and capital across borders).
715
Appadurai, supra note 7, at 167.
716
HORSMAN & MARSHALL, supra note 8, at 179 (quoting WILLIAM WALLACE, THE
TRANSFORMATION OF WESTERN EUROPE 33 (1990)); see also Lindseth, supra note 350, 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." (citation omitted)).
717
See Wolfgang H. Reinicke, The Other World Wide Web: Global Public Policy Net-
works, FOREIGN POL'Y, Winter 1999/2000, at 44, 45 ("[G]lobal public policy networks have
emerged over the last decade, experimenting with new ways to gather knowledge and dis-
seminate information on specific issues.").
718
EDWARDS, supra note 7, at 179; see also FALK, supra note 681, at 138 (describing
"global civil society"); THOMAS PRINCEN & MATHIAS FINGER, ENVIRONMENTAL NGOS IN
WORLD POLITICS: LINKING THE LOCAL AND THE GLOBAL 10 (1994) (noting that environ-
mental NGOs have shifted from operating solely at the national level to operating at the local
and global levels); MARTIN SHAW, GLOBAL SOCIETY AND INTERNATIONAL RELATIONS 5-9
(1995) (arguing that the only way to discuss society is in the international context); Richard
Falk, An Inquiry into the Political Economy of World Order, 1 NEW POL. ECON. 13, 24 (1996)
(describing "grassroots globalism" as a "movement of social forces, with a transnational de-
mocratising outlook"); Miguel Darcy de Oliveira & Rajesh Tandon, An Emerging Global
Civil Society, in CITIZENS STRENGTHENING GLOBAL CIVIL SOCIETY 1, 2 (Miguel Darcy de
Oliveira & Rajesh Tandon eds., 1994) (discussing the extension of "solidarity and responsibil-
ity to the public sphere on a global scale"); Paul Wapner, Politics Beyond the State: Envi-
ronmental Activism and World Civic Politics, 47 WORLD POL. 311, 312-13 (1995) (describing
global civil society as "the collective life," which "exists above the individual and below the
state, but across national boundaries").
719
See EDWARDS, supra note 7, at 179 (asserting that "building upwards from new ex-
periments in local politics and constitutional reform at the national level" will help in con-
structing international civil societies); see also JOHN VOGLER, THE GLOBAL COMMONS:
ENVIRONMENTAL AND TECHNOLOGICAL GOVERNANCE 20-41 (2d ed. 2000) (using "regime
analysis" to review such complex international cooperative efforts).
2002] GLOBALIZATION OF JURISDICTION 469
as an organized resistance to globalization, particularly with regard to eco-
nomic, trade, environmental, and labor policy. While some NGOs, such as
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, interna-
tional health and labor."720
Transnational networks of lawyers also work to
challenge many of the perceived injustices of globalization.721
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 pen-
sion funds to divest themselves of South African investments long before
official national sanctions were in place.722
Similar boycott efforts have re-
sulted in changes to tuna-fishing practices so as to protect dolphins,723
a de-
cision by the French government to suspend its nuclear testing program,724
and alterations in Shell Oil's decommissioning of a rig in the North Atlan-
tic.725
In addition, NGOs increasingly formulate global standards of corporate
720
Appadurai, supra note 7, at 168.
721
See Sarat & Scheingold, supra note 676, at 4 ("[D]emocratization and globalization
confront cause lawyers with new issues and new burdens while altering their resources and
their tactical and strategic options.").
722
See Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the
"Unregulated" Marketplace, 18 CARDOZO L. REV. 957, 959 (1996) (detailing how interest
groups, even "[w]here stymied by national regulators[,] . . . can accomplish equivalent results
by commanding consumer preferences, which in turn works to constrain corporate or state
behavior").
723
See Stop This Carnage: Hundreds of Our Dolphins Are Dying, W. MORNING NEWS
(U.K.), Feb. 7, 2002, at 1 (reporting that "wall of death nets" regularly threatened dolphins a
decade ago, but now successful public awareness campaigns have led to changes in tuna-
fishing techniques, and tuna manufacturers routinely label their tuna containers as "dolphin
safe"); 45 NOAA SEAPOWER (Jan. 1, 2002) (reporting a "notable success" in forging "inter-
national cooperation that allows `dolphin-safe' tuna to be harvested, while ensuring the health
of dolphin stocks"), 2002 WL 13922711. For a discussion of the tuna-dolphin controversy as
part of a consideration of the potential role of unilateral trade sanctions in protecting environ-
mental resources, see Parker, supra note 216.
724
See Greenpeace International Founder Dies in Car Crash, ENV'T NEWS SERVICE
(Mar. 23, 2001), at http://ens-news.com/ens/mar2001/2001-03-23-12.asp (crediting Green-
peace for creating pressure that helped push the French government to end its nuclear testing
program).
725
See Allan Pulsipher & William Daniel IV, Onshore-Only Platform Disposition Needs
Exceptions, OIL & GAS J., Jan. 15, 2001, at 64, 64 (reporting that Shell's decision to cancel its
plan for an "at-sea disposition" of an oil rig followed an unexpectedly fierce campaign and
public boycott).
470 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
behavior. These "codes of conduct" have appeared most prominently with
regard to human rights, environmental protection, and fair labor standards.
As The Economist has observed, "a multinational's 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."726
In re-
sponse, prominent corporate leaders, including AT&T, Federal Express,
Honeywell, and AOL TimeWarner, have established Business for Social
Responsibility--"[a] global nonprofit organization that helps member coun-
tries achieve commercial success in ways that respect ethical values, peo-
ples, communities, and the environment."727
Furthermore, especially in the
wake of the global movement against sweatshops,728
NGOs have been able
to persuade many corporations to accept independent monitoring of adopted
standards.729
Finally, in the area of human rights, NGOs have actively pursued trans-
national public law litigation,730
while continuing to lobby on behalf of hu-
manitarian intervention around the globe. Indeed, in the last fifteen years
we have seen that various events, "such as the Chernobyl nuclear disaster,
the mistreatment of Kurds in Iraq, the starvation and [lawlessness] in Soma-
lia in 1992-1993, and the brutal human rights abuses in [Kosovo]," have all
726
Multinationals and Their Morals, ECONOMIST, Dec. 2, 1995, at 18.
727
Mission, Business for Social Responsibility, at http://www.bsr.org/meta/about/
mission.cfm (last visited Nov. 18, 2002). Similarly, the World Business Council for Sustain-
able Development evinces a "shared commitment to sustainable development via the three
pillars of economic growth, ecological balance and social progress." About Us, World Busi-
ness Council for Sustainable Development, at http://www.wbcsd.ch/
aboutus/index.htm (last visited Nov. 24, 2002).
728
Many prominent companies
began to experience the full force of NGO and media rage [regarding sweatshops,]
with a barrage of stories and Internet-based campaigns aimed against their products.
Students lobbied their universities to sever business ties with companies that em-
ployed sweatshop labor. As a result, several firms changed their behavior, raising
standards abroad and inviting independent monitors to assess their progress.
Ethan B. Kapstein, The Corporate Ethics Crusade, FOREIGN AFF., Sept.-Oct. 2001, at 105,
105. For a recent argument that American corporations affiliated with sweatshops abroad
might be liable under the Thirteenth Amendment's prohibition of slavery, see Tobias Barring-
ton Wolff, The Thirteenth Amendment and Slavery in the Global Economy, 102 COLUM. L.
REV. 973 (2002).
729
See Spiro, supra note 722, at 962 (remarking that corporations reacted positively to
proposed independent monitoring). For an overview of the various forms the imposition of
human rights norms has taken, see Chris Avery, Business and Human Rights in a Time of
Change, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW 17
(Menno T. Kamminga & Saman Zia-Zarifi eds., 2000).
730
See, e.g., Jane Perlez, Indonesia's Guerrilla War Puts Exxon Under Siege, N.Y.
TIMES, July 14, 2002, at A3 (describing a lawsuit brought in the United States by the Interna-
tional Labor Rights Fund on behalf of Indonesian villagers who claim that Exxon is involved
in human rights abuses in connection with the operation of its plant in the province of Aceh).
2002] GLOBALIZATION OF JURISDICTION 471
brought international intervention in defiance of the old idea that national
borders and sovereignty were sacrosanct.731
Former Secretary General of
the United Nations Boutros Boutros-Ghali has even gone so far as to state
that "the time of absolute and exclusive sovereignty . . . has passed."732
In contrast to the development of global civil society, the development
of transnational terrorist organizations such as Al Qaeda is a much darker
example of transnational affiliation. Such organizations can mobilize per-
sonnel and deploy money around the world,733
functioning as quasi-state en-
tities. 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,734
thereby treating the attack more as a military action than a criminal one.735
731
Demko & Wood, supra note 8, at 10.
732
An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping:
Report of the Secretary-General, U.N. SCOR, 47th Sess., at 5, U.N. Doc. S/24111 (1992).
733
See Foreign & Commonwealth Office, U.K., Responsibility for the Terrorist Atroci-
ties in the United States, 11 September 2001: An Updated Account 2 (Nov. 14, 2001) ("Al
Qaida is a terrorist organisation with ties to a global network . . . . [The organization] includes
training camps, warehouses, communications facilities and commercial operations able to
raise significant sums of money to support its activity."), available at
http://www.pm.gov.uk/files/pdf/culpability_document1.pdf; Sam Dillon, Indictment by Span-
ish Judge Portrays a Secret Terror Cell, N.Y. TIMES, Nov. 20, 2001, at A1 (describing the
formation and emergence of a European Al Qaeda cell); Susan Sachs, An Investigation in
Egypt Illustrates Al Qaeda's Web, N.Y. TIMES, Nov. 20, 2001, at A1 (describing the ease with
which Al Qaeda "move[s] money around the globe"); Benjamin Weiser & Tim Golden, Al
Qaeda: Sprawling, Hard-to-Spot Web of Terrorists-in-Waiting, N.Y. TIMES, Sept. 30, 2001,
at B4 (discussing the training and mobilization of Al Qaeda militants). Other terrorist (or
revolutionary) movements have similarly global links. See, e.g., Vladimir Kucherenko, Cause
and Effect Nature of Globalization and Terror Argued, WORLD NEWS CONNECTION, Sept. 13,
2001, 2001 WL 27854157 (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 that utilize global technology to facili-
tate the flow of money and coordination of their activities).
734
The North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243,
246, declares:
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 re-
store and maintain the security of the North Atlantic area.
735
See NATO to Support U.S. Retaliation, CNN.COM (Sept. 12, 2001), at http://
www.cnn.com/2001/WORLD/europe/09/12/nato.us (reporting that NATO had invoked Arti-
cle V in response to the September 11 attacks, the first invocation of the provision in fifty-two
years).
472 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
The Bush administration has asserted the authority to try Al Qaeda opera-
tives 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 re-
served for state entities.736
Moreover, although some argue that the Sep-
tember 11, 2001 attacks signal a reassertion of the primacy of the nation-
state as the locus for ensuring security and world order,737
both the attacks
and the responses necessary to combat global terrorism demonstrate the
need for increasing transnational and international cooperation. As Harold
Hongju Koh has argued, the real challenge in the face of these attacks is to
figure out how to use "the constructive face of globalization to overcome its
most destructive face."738
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 over-
arching narrative of world community.739
Another example that has drawn
considerable attention in recent years is the effort to construct a European
identity that operates beyond the individual nation-states on the continent.
In the post-Maastricht European Union, the line between a "national"
and a European unit has become increasingly blurred.740
We now see a
common currency, the ability to travel without visas, and the development
736
See, e.g., Hearing on Military Tribunals Before the S. Comm. on the Judiciary (Dec.
4, 2001) (testimony of Pierre-Richard Prosper, Ambassador-at-Large for War Crimes) ("As
the president's order [establishing military commissions] recognizes, we must call these at-
tacks by the rightful name, `war crime.'"), 2001 WL 1591408, at *17.
737
See, e.g., Dominique Mosi, Early Winners and Losers in a Time of War, FIN. TIMES
(U.S.), Nov. 19, 2001, at 15 ("In the post-cold-war global age, the state's legitimacy and com-
petence appeared to be waning. Caught between the emergence of civil society and the grow-
ing power of transnational corporations, the state appeared to be fighting a rearguard battle.
Now, with security a priority, it is back with a vengeance.").
738
Harold Hongju Koh, Preserving American Values: The Challenge at Home and
Abroad, in THE AGE OF TERROR: AMERICA AND THE WORLD AFTER SEPTEMBER 11, at 145,
147 (Strobe Talbott & Nayan Chanda eds., 2001).
739
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." Gupta, supra note 3, at 185.
Thus, the United Nations does not fully challenge the system of nation-state sovereignty.
740
See ALLAN M. WILLIAMS, THE EUROPEAN COMMUNITY: THE CONTRADICTIONS OF
INTEGRATION 206 (2d ed. 1994) (arguing that "the importance of the Single European Act
was not to be seen in any resultant institutional changes but in that it reopened the debate
about the inevitabilitiy of [European Community] integration, or the survival of the nation-
state" (internal quotation marks omitted)).
2002] GLOBALIZATION OF JURISDICTION 473
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.741
Such practices certainly resemble the activities
and concerns of traditional nation-states.742
Though it may be unlikely that
the nation-states constituting Europe will disappear,743
the shift is neverthe-
less a real and important one. Indeed, we may be seeing the emergence of a
hybrid form of governance that is neither a unified federation nor a single
European state, but is perhaps some combination of the two. As one com-
mentator points out, "[t]his tension between a federation and a confedera-
tion, between integration and interdependence, has been implicit in the no-
tion of `Europe' since the beginning."744
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. The explicit aim of these schools is to "`create a
whole new layer of identity in these kids.'"745
According to reports,
"[g]raduates emerge [from these schools] superbly educated, usually trilin-
gual, with their nationalism muted--and very, very European."746
This
seems to be the intent. Indeed, the schools strive to educate students "not as
products of a motherland or fatherland but as Europeans."747
This effort has been contentious, particularly in the study of history,
where textbooks from a particular country tend to portray events in the past
741
See generally Paul Teague, Between Convergence and Divergence: Possibilities for
a European Community System of Labour Market Regulation, 132 INT'L LABOUR REV. 391
(1993) (examining the influences for and against the establishment of a new European labor
market regulation).
742
Cf. CURTIN, supra note 5, at 42 (describing the "usurping of national legislative
power by the European Community" as "direct and striking").
743
See Lindseth, supra note 350, at 680-83 (describing the "continued pull of the nation-
state" in Europe); cf. Alec Stone, Ratifying Maastricht: France Debates European Union, 11
FRENCH POL. & SOC'Y 70, 85 (1993) (arguing that the idea of "Europe" has arrived "as a do-
mestic political issue").
744
Gupta, supra note 3, at 186. Alan Milward and Vibeke Srensen argue that while the
European Union may be integrationist with respect to its plans for monetary union, its immi-
gration, defense, and foreign policies are based on a model of interdependence. Alan S. Mil-
ward & Vibeke Srensen, Interdependence or Integration? A National Choice, in THE
FRONTIER OF NATIONAL SOVEREIGNTY: HISTORY AND THEORY 1945-1992, at 20, 30 (Alan
S. Milward et al. eds., 1993); see also Étienne Balibar, Racism and Politics in Europe Today,
186 NEW LEFT REV. 5, 16 (1991) ("The state today in Europe is neither national nor suprana-
tional, and this ambiguity does not slacken but only grows deeper over time.").
745
Glynn Mapes, Polyglot Students Are Weaned Early off Mother Tongue, WALL ST. J.,
Mar. 6, 1990, at A1 (quoting Desmond Swan, Professor of Education at University College,
Dublin).
746
Id. (emphasis added).
747
Id.
474 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
from that country's point-of-view.748
Nevertheless, "[t]he European Com-
munity schools are creating new sets of relationships between peoples and
spaces, forging a different type of identity in their students."749
It will be
interesting to see whether these schools ultimately adopt a broader cosmo-
politan perspective or whether they simply reconstruct Europe as a "home-
land" that, while not national, is nevertheless viewed as a territorial fortress
to be protected from "outsiders."750
Sadly, the evidence thus far indicates
that a coordination of immigration policies is leading to precisely this kind
of "fortress" mentality, whereby "Europe" must be defended against immi-
grants.751
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 rele-
vant community as truly global and plural--a cosmopolitan community.752
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.753
Cosmopolitanism takes this argu-
748
See id. (quoting one European school history teacher as saying that such textbooks
"tend to be blinkered histories of the great powers").
749
Gupta, supra note 3, at 186-87.
750
See Carlos Closa, The Concept of Citizenship in the Treaty on European Union, 29
COMMON MKT. L. REV. 1137, 1141 (1992) ("Within the community framework, the enjoy-
ment of certain rights and privileges depends on the person holding the citizenship or national-
ity of a member state which is still the predominant criteria [sic]."); Dietrich Thränhardt &
Robert Miles, Introduction to MIGRATION AND EUROPEAN INTEGRATION: THE DYNAMICS OF
INCLUSION AND EXCLUSION 1, 3 (Robert Miles & Dietrich Thränhardt eds., 1995) (challeng-
ing the "popular conception" of Europe as a "fortress" because the "fortress . . . is constantly
breached by `illegal' immigrants"); cf. Biddy Martin & Chandra T. Mohanty, Feminist Poli-
tics: What's Home Got to Do with It?, in FEMINIST STUDIES/CRITICAL STUDIES 191, 192
(Teresa de Lauretis ed., 1986) (discussing the challenge of finding different ways to conceptu-
alize community).
751
See Gupta, supra note 3, at 187 (asking, "Will Europe become a `fortress' to be de-
fended against immigrants?").
752
For a sampling of the scholarship in this area, see generally JESSICA BERMAN,
MODERNIST FICTION, COSMOPOLITANISM, AND THE POLITICS OF COMMUNITY 1-27 (2001);
COSMOPOLITICS: THINKING AND FEELING BEYOND THE NATION, supra note 29;
GLOBALIZATION (Arjun Appadurai ed., 2001); HANNERZ, supra note 529; MARTHA C.
NUSSBAUM ET AL., FOR LOVE OF COUNTRY: DEBATING THE LIMITS OF PATRIOTISM (Joshua
Cohen ed., 1996); BRUCE ROBBINS, FEELING GLOBAL: INTERNATIONALISM IN DISTRESS
(1999).
753
For a discussion of Anderson's analysis of the relationship between the rise of print
2002] GLOBALIZATION OF JURISDICTION 475
ment 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 some transnational sort of
fellowship.
754
Thus, a sense of diminishing distance among peoples may lead to greater
identification across borders.
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 trav-
eled to, that we have perhaps only seen on television--including the place
where the television itself was manufactured."755
If we truly feel that con-
nection, 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.'"756
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, cosmopol-
itanism does not require one to give up local identifications, which, she ac-
knowledges, "can be a source of great richness in life."757
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
capitalism and the nation-state, see supra notes 647-56 and accompanying text.
754
Robbins, supra note 29, at 7.
755
Id. at 3.
756
Martha C. Nussbaum, Patriotism and Cosmopolitanism, in NUSSBAUM ET AL., supra
note 752, at 3, 7 (quoting Roman playwright Lucius Annaeus Seneca).
757
Id. at 9.
476 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
groupings based on ethnic, linguistic, historical, professional, gender, or sexual
identities. Outside all these circles is the largest one, humanity as a whole.
758
The task then, is to draw the circles together. Therefore, we need not relin-
quish 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."759
But, Nussbaum argues, "we should also
work to make all human beings part of our community of dialogue and con-
cern, base our political deliberations on that interlocking commonality, and
give the circle that defines our humanity special attention and respect."760
In this vision, people could be "cosmopolitan patriots,"761
accepting
their responsibility to nurture the culture and politics of their home commu-
nity, while at the same time recognizing that such cultural practices are al-
ways 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."762
Iris Young has used the ideal of the "unoppressive city" as a model for
a similarly multifaceted understanding of community.763
She argues that
"community" is always a politically problematic term because "those moti-
vated by it will tend to suppress differences among themselves or implicitly
to exclude from their political groups persons with whom they do not iden-
758
Id. One could also imagine the circle expanding still farther to include nonhuman
animals, see, e.g., PETER SINGER, ANIMAL LIBERATION 8 (2d ed. 1990) ("If a being suffers
there can be no moral justification for refusing to take that suffering into consideration. No
matter what the nature of the being, the principle of equality requires that its suffering be
counted equally with the like suffering . . . of any other being."), and the environment, see,
e.g., Christopher D. Stone, Should Trees Have Standing? Toward Legal Rights for Natural
Objects, 45 S. CAL. L. REV. 450, 450 (1972) ("Originally each man had regard only for him-
self and those of a very narrow circle about him; later . . . `his sympathies became more tender
and widely diffused, extending . . . finally to the lower animals.'" (quoting CHARLES
DARWIN, DESCENT OF MAN 119-21 (2d ed. 1874))). For a comparison of the two movements,
see Megan A. Senatori, The Second Revolution: The Diverging Paths of Animal Activism and
Environmental Law, 8 WIS. ENVTL. L.J. 31 (2002).
759
Nussbaum, supra note 756, at 9.
760
Id.
761
Kwame Anthony Appiah, Cosmopolitan Patriots, in COSMOPOLITICS: THINKING
AND FEELING BEYOND THE NATION, supra note 29, at 91.
762
Id. at 92.
763
See Iris Marion Young, The Ideal of Community and the Politics of Difference, in
FEMINISM/POSTMODERNISM 300, 317 (Linda J. Nicholson ed., 1990) ("Our political ideal is
the unoppressive city."); see also Jerry Frug, The Geography of Community, 48 STAN. L. REV.
1047, 1048-49 (1996) (invoking Young's ideal city to reclaim the idea of community as "the
being together of strangers," rather than limiting community to "feelings of identity or unity").
2002] GLOBALIZATION OF JURISDICTION 477
tify."764
Thus "[t]he desire for community relies on the same desire for so-
cial wholeness and identification that underlies racism and ethnic chauvin-
ism on the one hand and political sectarianism on the other."765
Instead, she
envisions ideal city life as the "`being-together' of strangers."766
These
strangers may remain strangers and continue to "experience each other as
other."767
Indeed, they do not necessarily seek an overall group identifica-
tion and loyalty. Yet, they are open to "unassimilated otherness."768
They
belong to various distinct groups or cultures and 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,769
one that is never a hegemonic imposition of sameness but
that nevertheless prevents different groups from ever being completely out-
side one another.770
In a city's public spaces, Young argues, we see
glimpses of this ideal: "The city consists in a great diversity of people and
groups, with a multitude of subcultures and differentiated activities and
functions, whose lives and movements mingle and overlap in public
spaces."771
In this vision, there can be community without sameness, shift-
ing affiliations without ostracism.772
Although Young does not refer to her vision as cosmopolitan, it fits
comfortably within the alternative understanding of community I am sketch-
ing 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 de-
764
Young, supra note 763, at 300.
765
Id. at 302.
766
Id. at 318.
767
Id.
768
Id. at 319.
769
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; see also Frug, supra note 763, at 1049
("Unlike Young, I do not cede the term community to those who evoke the romance of to-
getherness.").
770
See Young, supra note 763, at 319 (positing that a group of strangers living side by
side "instantiates social relations as difference in the sense of an understanding of groups and
cultures that are different, with exchanging and overlapping interactions that do not issue in
community, yet which prevent them from being outside of one another").
771
Id.
772
This vision is not exclusive to Western thought. See, e.g., Pollock et al., supra note
673, at 586 (noting "the Asia-wide circulation of Sanskrit poetry in the first millennium
whereby participation in a translocal culture, uneven and restricted by life chances though it
was, neither required enforcement at the point of a sword nor entailed the obliteration of eve-
rything already in place").
478 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
manding assimilation or ostracism. Cosmopolitanism seeks "flexible citi-
zenship,"773
in which people are permitted to shift identities amid a plurality
of possible affiliations and allegiances. These allegiances could also in-
clude non-territorial communities, such as those found in Internet cha-
trooms. The cosmopolitan worldview shifts back and forth from the rooted
particularity of personal identity to the global possibility of multiple over-
lapping communities. It requires a "translation or transmutation of cos-
mopolitanism, usually understood as a detached, individual view of the
global, into the more collective, engaged, and empowered form of worldli-
ness that is often called internationalism."774
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 plu-
ralism? The next Part takes up this question.
V. 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 ideas of space and community are
themselves narrative constructions that are always contested.775
Thus, the
problem with assuming that nation-state 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 rela-
tionships of subjects to multiple collectivities."776
Rather, we must recog-
nize that the ability of people to confound the established spatial orders, ei-
ther through physical movement or through their own conceptual and
political acts of reimagination or jurisdiction-making, means that space and
community affiliation can never be "given" and that the process of their so-
ciopolitical construction must always be considered. A jurisdictional sys-
tem whose objects are no longer conceived as "automatically and naturally
anchored in space" can therefore "pay particular attention to the way spaces
773
See ONG, supra note 711, at 6 (describing how "the cultural logics of capitalist ac-
cumulation, travel, and displacement that induce subjects to respond fluidly and opportunisti-
cally to changing political-economic conditions" foster a form of transnationality she calls
"flexible citizenship").
774
ROBBINS, supra note 752, at 5.
775
See BERMAN, supra note 752, at 3-4 (arguing that, when we speak of community, we
necessarily "move in 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").
776
Gupta, supra note 3, at 196.
2002] GLOBALIZATION OF JURISDICTION 479
and communities are made, imagined, contested, and enforced."777
In this
final Part, I attempt to sketch the contours of such a multivalent jurisdic-
tional system, which I call a cosmopolitan pluralist conception of jurisdic-
tion.
The cosmopolitan pluralist conception of jurisdiction aims to capture a
jurisdictional middle ground between strict territorialism on the one hand
and expansive universalism on the other. As we have seen, a territorialist
approach to jurisdiction fails to account for the wide variety of community
affiliations and social interactions that defy territorial boundaries. A more
universalist perspective, by contrast, which seeks to imagine people as
world citizens first and foremost, might seem to be a useful alternative. Af-
ter all, universalism recognizes (and indeed celebrates) non-national identi-
fication.778
This alternative, though attractive in its idealism, strikes me as
misguided for several reasons: First, it asks that we see ourselves solely as
citizens of the world and therefore dissolves the multirootedness of commu-
nity affiliation into one global community. Second, it fails to capture the
extreme emotional ties people still feel to distinct transnational or local
communities.779
Thus, universalism tends to ignore the very attachments
777
Gupta & Ferguson, supra note 529, at 47. One might also extend the approach of-
fered here to consider the ways in which ideas such as "the Self" and "the subject matter" are
also "made, imagined, contested, and enforced." Id. Thus, for example, the doctrines of
standing and subject matter jurisdiction might be analyzed more closely in order to consider
possibilities of fragmented, partial, or multiple assertions of jurisdiction over aspects, parts, or
elements of the individual or the subject matter. Although such exploration is beyond the
scope of this Article, a recognition of the social meaning of legal jurisdiction opens space for
consideration of these important issues by focusing on the socially constructed nature of the
assertion of legal authority. Indeed, with regard to subject matter jurisdiction, an analysis of
the relationship between state and tribal courts might be fruitful. For example, the Indian
Child Welfare Act establishes presumptive tribal court jurisdiction over child custody pro-
ceedings involving an Indian child, even if the child does not reside in Indian country. See 25
U.S.C. § 1911(a) (2000) ("Where an Indian child is a ward of a tribal court, the Indian tribe
shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.").
Thus, the statute seems to evince a vision of tribal community membership not based on terri-
tory. In addition, the question of tribal court jurisdiction over non-Indians has long been con-
troversial. Although the U.S. Supreme Court has denied tribes' criminal jurisdiction over
non-Indians, e.g., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978), and has also
denied tribes' jurisdiction over non-Indians in many civil cases, e.g., Montana v. United
States, 450 U.S. 544, 565-67 (1981), a more flexible understanding of the multiple nature of
community affiliation would likely support the idea of concurrent state and tribal court juris-
diction.
778
See, e.g., Pollock et al., supra note 673, at 581 ("Modernity has never fallen short of
making universalist claims to world citizenship, based on the spectacular success of the
Enlightenment as a pedagogical and political project.").
779
See Thomas M. Franck, Clan and Superclan: Loyalty, Identity and Community in
Law and Practice, 90 AM. J. INT'L L. 359, 374 (1996) ("The powerful pull of loyalty exerted
by the imagined nation demonstrates that, even in the age of science, a loyalty system based
480 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
people hold most deeply. Third, as Anupam Chander has pointed out, the
aspiration that we become solely citizens of the world is at least partly based
on an internationalization of John Rawls's theory of justice780
and is there-
fore subject to the same criticism Rawls has long faced: that his theory as-
sumes a Self detached from the social and cultural context that makes such a
Self possible.781
Fourth, an ongoing system of comprehensive universal ju-
risdiction poses such a strong challenge to our current notions of nation-
state sovereignty that, as a practical matter, it seems unlikely to be adopted
widely in the foreseeable future. Fifth, and perhaps most important, a uni-
versalist conception of jurisdiction tends to presuppose a world citizenry
devoid of both particularist ties and normative discussion about the relative
importance of such ties. Thus, universalism cuts off debate about the nature
of overlapping communities just as surely as territorialism does.
A cosmopolitan conception of jurisdiction, in contrast, makes no at-
tempt to deny the multirootedness of individuals within a variety of com-
munities, both territorial and non-territorial. Indeed, the basic tenet of cos-
mopolitanism, as I define it, is the acknowledgment of multiple
communities, rather than the erasure of all communities except the most en-
compassing. Thus, although a cosmopolitan conception of jurisdiction ac-
knowledges the potential importance of asserting universal jurisdiction in
specific circumstances,782
it does not require a universalist belief in a single
world community.
In addition, a truly pluralist conception of jurisdiction recognizes that
law does not reside solely in the coercive commands of a sovereign power.
Rather, law is constantly constructed through the contest of various norm-
generating communities.783
As Robert Cover argued nearly two decades
ago, "all collective behavior entailing systematic understandings of our
on romantic myths of shared history and kinship has a capacity to endure . . . .").
780
See Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, 41 NOMOS 12,
36 (1999) (noting that a number of philosophers take a global version of Rawls's theory of
justice as their starting point).
781
See Chander, supra note 562, at 1047 (criticizing cosmopolitanism because it em-
braces an image of the Self that "removes the aspects that make the self special"). Chander
ascribes this position to cosmopolitanism. While I agree with his critique, I believe he is actu-
ally targeting what I call "universalism." As this Part makes clear, I view cosmopolitanism as
the recognition of multiple attachments, not the desire for a single world citizenry.
782
See supra Part I.I (discussing the assertion of universal jurisdiction over alleged hu-
man rights violators).
783
See Cover, supra note 523, at 43 ("The position that only the state creates law . . .
confuses the status of interpretation with the status of political domination."); see also Cover,
supra note 2, at 176 (arguing 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").
2002] GLOBALIZATION OF JURISDICTION 481
commitments to future worlds" can lay equal claim to the word "law."784
Thus, although "official" norms articulated by sovereign entities obviously
count as "law," a pluralist framework acknowledges that such official asser-
tions of jurisdiction are only one of the many ways in which normative
commitments arise. Accordingly, a more comprehensive conception of ju-
risdiction must attend to the jurisdictional assertions of nonsovereign com-
munities as well.785
Such jurisdictional assertions are significant because,
even though they lack coercive power, they open a space for the articulation
of legal norms that are often subsequently incorporated into official legal
regimes.
Indeed, once we recognize that the state does not hold a monopoly on
the articulation and exercise of legal norms, then we can see law as a terrain
of engagement, where various communities debate different visions of al-
ternative futures. And the idea of jurisdiction necessarily 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 articulate vi-
sions of future worlds. If jurisdiction is, literally, the ability to speak as a
community, then we can begin to develop a "natural law of jurisdiction,"786
where communities claim the authority to use the language of the law based
on a right or entitlement that precedes the particular sovereignties of the
present moment.
By acknowledging the ways in which the language and forms of law are
deployed by individuals and communities both inside and outside the terri-
torial bounds of the state system, the cosmopolitan pluralist conception of
jurisdiction recalls not only Robert Cover,787
but also the pioneering work of
Myres McDougal, Harold Lasswell, and the New Haven School of Interna-
tional Law. These scholars argued that international legal regimes were not
concerned primarily with fixed rules but with procedures for interaction.788
784
Cover, supra note 2, at 176 (emphasis added).
785
Cover argues that such a capacious understanding of "law" would "deny to the nation
state any special status for the collective behavior of its officials or for their systematic under-
standings of some special set of `governing' norms." Id. According to Cover, such "official"
norms may count as law, but they must share that title with "thousands of other social under-
standings." Id.
786
Cover, supra note 523, at 58.
787
Cover, of course, wrote long before the rise of the Internet or the burgeoning interest
in globalization. Yet I believe that his evocative musings on the nature of jurisdiction provide
a useful starting point for developing a more conceptually satisfying understanding of legal
jurisdiction in the twenty-first century.
788
See Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of
Diverse Systems of Public Order, 53 AM. J. INT'L L. 1, 9 (1959) ("Within the decision-making
process our chief interest is in the legal process, by which we mean the making of authorita-
tive and controlling decisions."); see also id. ("Authority is the structure of expectation con-
482 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
Thus, the School saw international law as a "world constitutive process of
authoritative decision," rather than a set of coercive requirements.789
Not
surprisingly, these scholars focused attention on the idea of jurisdiction it-
self, analyzing the way in which processes of international order could be
applied to new places, such as Antarctica790
and outer space791
--the "cyber-
spaces" of a previous generation. Indeed, they emphasized that jurisdiction
is asserted not through "naked force or calculations of expediency . . . [but
by] participants established by community expectation . . . [making] rea-
soned decisions, justified by relation to policy criteria established by com-
munity expectation."792
Moreover, they recognized that people form multi-
ple community attachments and argued that "[t]he individual should be able
to become a member of, and to participate in the value processes of, as
many bodies politic as his capabilities will permit."793
Building on these
observations, a cosmopolitan pluralist framework emphasizes the process of
interaction among a wide variety of norm-generating communities that are
based on the entire panoply of multiple overlapping affiliations and attach-
ments people actually experience in their daily lives, from the local to the
global (including some affiliations not based on territory at all). In this vi-
sion, as in the work of the New Haven School, a jurisdictional assertion is
part of an international process of community definition and norm creation.
This Part first develops the cosmopolitan pluralist framework for ana-
lyzing questions of jurisdiction and recognition of judgments. It then ap-
plies that framework to a few of the jurisdictional conundrums discussed in
Part I. I conclude with some thoughts about the ways in which cyberspace
legal issues and traditional international law concerns are converging, both
in debates about jurisdiction and in the creation of a transnational common
law.
A. The Cosmopolitan Pluralist Jurisdictional Framework
As previously discussed, a cosmopolitan conception of community rec-
cerning who, with what qualifications and mode of selection, is competent to make which de-
cisions by what criteria and what procedures. By control we refer to an effective voice in de-
cision, whether authorized or not.").
789
Myres S. McDougal et al., The World Constitutive Process of Authoritative Deci-
sions, 19 J. LEGAL EDUC. 253, 255 (1967).
790
See generally EMILIO J. SAHURIE, THE INTERNATIONAL LAW OF ANTARCTICA
(1992) (describing the laws of Antarctica as they relate to the international legal order).
791
See generally MYRES S. MCDOUGAL ET AL., LAW AND PUBLIC ORDER IN SPACE
(1963) (outlining a framework for the study of law and public order in space).
792
Id. at 95.
793
Myres S. McDougal et al., Nationality and Human Rights: The Protection of the In-
dividual in External Arenas, 83 YALE L.J. 900, 903 (1974).
2002] GLOBALIZATION OF JURISDICTION 483
ognizes the interrelatedness of peoples and cultures around the world while
nevertheless attending to local variations among groups and the wide variety
of ways that individuals come to understand their identification with those
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
unbordered.794
Instead of an ideal of detachment or universalism, cos-
mopolitanism recognizes multiple attachments across time and space.
Moreover, there are always multiple norm-generating communities; the
assertion of jurisdiction is therefore the act that sets these normative views
in conflict. Accordingly, a cosmopolitan pluralist conception of jurisdiction
would provide all the multiple attachments we might call "community" with
an opportunity to establish both their claim to community status and their
particular normative commitments on the legal stage of jurisdiction. Juris-
diction thus becomes the locus for debates about the appropriate definition
of community and the articulation of norms.
In practice, this means that territorially based limitations on the asser-
tion of jurisdiction are inappropriate because they reify arbitrary boundaries
and foreclose 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 me-
chanical 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 inter-
connection 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.795
Then a court subsequently asked to enforce a judgment would need to ad-
dress in a more nuanced way both the question of whether the assertion of
jurisdiction that led to the judgment was legitimate and whether the substan-
tive norms announced by the prior court should be deemed enforceable.
Although the cosmopolitan pluralist conception implies the possibility
for jurisdictional assertions by non-state communities (and I will address
such assertions in detail below), it in no way denies the continued impor-
tance of nation-states or state-sanctioned courts. After all, cosmopolitanism
794
Appadurai, supra note 7, at 189.
795
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 such cases, see,
for example, JAMES CLIFFORD, THE PREDICAMENT OF CULTURE: TWENTIETH-CENTURY
ETHNOGRAPHY, LITERATURE, AND ART 277-346 (1988).
484 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
recognizes multiple attachments, and there can be little doubt that, even if--
as I have argued--the nation-state is an imagined community, socially con-
structed and historically contingent, it is still a particularly powerful imag-
ined community and one that generates real feelings of loyalty and attach-
ment.796
People obviously are far more willing to die for their nation-state
than, say, for their bowling league. In addition, as a practical matter, state-
sanctioned courts and nation-state boundaries are likely to be an enduring
part of the political landscape for the foreseeable future. Thus, I begin by
looking at the implications of a cosmopolitan conception of jurisdiction for
assertions of jurisdiction by such state-sanctioned courts. I then consider
the broader question of jurisdictional assertions by non-state communities.
1. A Jurisdictional Framework for State-Sanctioned Courts
A cosmopolitan pluralist conception of jurisdiction would change the
analytical framework for assessing jurisdiction in several respects from that
which is currently used in most courts, both in the United States and else-
where. The changes are actually not so dramatic, however, because courts
have already begun to use an analysis of community ties as the rubric for
determining jurisdiction even while purporting to count contacts. Thus, in
many respects the cosmopolitan pluralist framework merely makes explicit
the analytical steps judges are already using implicitly.
Under most current jurisdictional analyses, a court assumes that the
plaintiff is appropriately within the court's jurisdiction because the plaintiff,
by bringing the lawsuit, has voluntarily submitted to its jurisdiction and is
physically present within its territorial bounds. A court employing a com-
munity-based jurisdictional analysis, however, would need to determine if
either (1) the plaintiff can appropriately be defined as a member of the
community asserting jurisdiction, or (2) even if the plaintiff is not a com-
munity member, the issue the plaintiff raises is of such significance to the
community that jurisdiction can be justified.797
796
See Pollock et al., supra note 673, at 579 (describing the power of the imagined na-
tion of Pakistan "to address the experience of cultural and political displacement that colonial-
ism had meant for many Muslims in South Asia" and arguing that although "the nationalist
search for home and authenticity may have been modern . . . it was not, for that reason, inau-
thentic or illegitimate in itself").
797
This inquiry is sometimes captured by a court's consideration of the plaintiff's stand-
ing to bring suit. The doctrine of standing, however, often incorporates other inquiries--such
as whether the plaintiff suffered sufficient harm--that are distinct from an investigation of the
nexus between the dispute and the community where the court sits. See, e.g., Whitmore v.
2002] GLOBALIZATION OF JURISDICTION 485
As to the first inquiry--the plaintiff's community membership--a
number of factors may be relevant. Some are familiar from current jurisdic-
tional analyses: What is the plaintiff's citizenship? Where is the plaintiff
usually found? But others are significantly different. For example, while
jurisdictional inquiries often look only to the citizenship or primary resi-
dence of the party,798
a community-based model might find relevant com-
munity ties anywhere the party resides for a significant period of time, re-
gardless of whether or not it is a primary residence. In addition, the
presence of a relevant subcommunity within the jurisdiction might be a fac-
tor (for example, if the plaintiff has ties to others within the community
based on common kinship, ethnicity, or interests).
Even if the plaintiff does not possess such ties, jurisdiction would still
be appropriate if the issue raised in the suit is of great importance to the
community. For example, as we have seen, grave human rights violations
might trigger various forms of universal or transnational jurisdiction.799
Ju-
risdiction might also be appropriate over a defendant who is a member of
the community even if the plaintiff is not, because the community still has
an obligation to police one of its own.
Turning to the defendant, under a community-based analysis jurisdic-
tion is proper if (1) the defendant can be deemed a member of the same
community as the plaintiff, or (2) the defendant can be deemed a member of
the forum community. Thus, for example, if plaintiff and defendant are
bound by ethnic ties or are linked through transnational networks, jurisdic-
tion might be appropriate even if the defendant lacked specific ties with the
territorial location of the court. Conversely, even if plaintiff and defendant
were not particularly linked, if the defendant can be deemed a member of
the community where the court sits, jurisdiction would also be proper.
In order to determine the community affiliation of the defendant, courts
Arkansas, 495 U.S. 149, 155-56 (1990) (listing the various requirements to establish proper
standing).
798
See, e.g., Milliken v. Meyer, 311 U.S. 457, 463 (1940) ("The state which accords [a
defendant] privileges and affords protection to him and his property by virtue of his domicile
may also exact reciprocal duties."); cf. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 11
(1971) ("Every person has a domicil at all times and . . . no person has more than one domicil
at a time.").
799
See supra text accompanying notes 186-204 (describing international human rights
suits brought against the likes of Chile's ex-head of state, Augusto Pinochet; Chad's Hissne
Habré; and the former Serbian president, Slobodan Milo¹eviæ). Although a cosmopolitan
conception of jurisdiction rejects a universalist approach that seeks to make world community
citizenship the only relevant jurisdictional affiliation, see supra text accompanying note 782
(defining cosmopolitanism as "the acknowledgement of multiple communities, rather than the
erasure of all communities except the most encompassing"), it in no way denies the impor-
tance of local communities' asserting universal jurisdiction in specific cases.
486 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
again could consider a variety of factors. These include the citizenship and
residence of the defendant, the amount of activity the defendant conducts in
the forum community, and the extent of the defendant's impact on the
community. The jurisdictional analysis in criminal cases would be similar,
focusing on the defendant's own community identification as well as the ex-
tent of the defendant's community activities or the impact of defendant's
activities on the community. Such traditional factors as "purposeful avail-
ment" or "volitional contacts" could be substantially retained, but recast as
an analysis of whether the defendant has become aligned with or bound to
the community at issue.
In all of these inquiries, the determination of community affiliation con-
tains both a subjective and an objective element. The felt and expressed
bonds of individuals are relevant to the calculus, but such bonds might have
objective indicia, such as citizenship, travel patterns, telephone records, so-
cial activities, financial transactions, and so forth. In addition, a community
severely affected by transnational activity might see fit to assert community
dominion even over a distant actor, based solely on the impact of the defen-
dant's activities.
I have already discussed the uncertainty in U.S. law concerning juris-
diction based on a product's presence in a territorial location because of the
"stream of commerce."800
A community-based analysis, because it focuses
less on the amount of volitional contact with a territorial entity, would likely
result in the assertion of jurisdiction over such a territorially distant defen-
dant if its products regularly end up in a given community and cause harm
there. In such circumstances, courts following this approach would recog-
nize that the reality of global capitalism means that companies form transna-
tional bonds with consumers territorially removed from them.
Other aspects of traditional minimum-contacts inquiries would also be
less important under a community-based approach. For example, the pur-
ported inconvenience to the defendant of having to defend a suit far from
home can be part of the analysis of whether a defendant should be deemed a
member of the community, but it no longer takes on such significance as an
independent factor. This is appropriate because in a world of rapid trans-
portation, instant wireless communication, and even virtual courtrooms, de-
fending a lawsuit in a distant physical location is far less burdensome (both
literally and psychically) than it once was. Likewise the "foreseeability" of
being brought into a particular court, though often invoked in U.S. Supreme
800
See supra note 52 and accompanying text (discussing the U.S. Supreme Court's
stream-of-commerce decision, Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102
(1987)).
2002] GLOBALIZATION OF JURISDICTION 487
Court doctrine,801
is of little help given that, in an increasingly intercon-
nected world, it is always foreseeable that activity in one place will have ef-
fects in many far away locations. Moreover, as many scholars have pointed
out, "foreseeability" is a circular test because whether one foresees being
subject to jurisdiction in a particular court depends in large part on what
courts have previously determined is reasonably foreseeable.802
Thus, little
is lost by jettisoning this analytical metric.
Nevertheless, it is important to emphasize that a community-based
analysis would not necessarily result in broader assertions of jurisdiction
than under current jurisdictional schemes. For example, the requirement
that the plaintiff have community ties with the forum might well make fo-
rum-shopping more difficult because plaintiffs could not simply choose the
community with the most convivial law regardless of social ties. Likewise,
a community-based approach might not permit so-called transient-presence
jurisdiction, where the defendant is present within the physical boundaries
of a territory only briefly, or for an unrelated reason.803
Such transient-
presence jurisdiction is generally permissible under territorial schemes,
leading to such ludicrous activities as service of process in an airplane as it
flies over a territorial jurisdiction.804
By inquiring about substantive ties to
a community rather than formal contacts with a location, a community-
based approach would render such jurisdictional assertions more amenable
801
See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)
("[T]he foreseeability that is critical to due process analysis is . . . that the defendant's conduct
and connection with the forum State are such that he should reasonably anticipate being haled
into court there.").
802
See, e.g., David Wille, Personal Jurisdiction and the Internet--Proposed Limits on
State Jurisdiction over Data Communications in Tort Cases, 87 KY. L.J. 95, 136 (1998) ("The
purposeful availment requirement stems from the notion that defendants should be able to
plan their conduct knowing where that conduct will subject them to jurisdiction. But . . .
[d]efendants only have reasonable expectations about where they will be haled into court be-
cause courts have created such expectations." (citation omitted)); Burk, supra note 119, at
1118 (opining that a forseeability inquiry amounts to nothing more than the idea that "defen-
dants should reasonably anticipate being haled into any court into which they should reasona-
bly anticipate being haled"); cf. Luther L. McDougal III, Judicial Jurisdiction: From a Con-
tacts to an Interest Analysis, 35 VAND. L. REV. 1, 10 (1982) (noting the impossibility of
predicting how a court will rule on the "fairness" element of minimum contacts). For a dis-
cussion of this problem within a more general analysis of circularity in constitutional adjudi-
cation, see Michael Abramowicz, Constitutional Circularity, 49 UCLA L. REV. 1, 64-65
(2001).
803
See, e.g., Burnham v. Superior Court, 495 U.S. 604, 610-19 (1990) (Scalia, J., joined
by Rehnquist, C.J., White, Kennedy, JJ.) (finding jurisdiction based on mere transient pres-
ence consonant with traditional practice at the time of the adoption of the Fourteenth Amend-
ment).
804
See, e.g., Grace v. MacArthur, 170 F. Supp. 442, 447 (E.D. Ark. 1959) (permitting
assertion of jurisdiction in such circumstances).
488 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
to challenge. Finally, there might be occasions when a "minimum contacts"
inquiry would find, say, that a couple of web "hits" in a jurisdiction would
be sufficient to render a defendant subject to suit there. A community-based
approach, however, would go beyond counting contacts to inquire about the
substantive bonds formed between the member of the forum community and
the territorially distant actor.
Most important, the cosmopolitan pluralist approach to jurisdiction re-
quires that courts make explicit an inquiry that current jurisdictional rules
obscure. If jurisdiction is in part about the assertion of community domin-
ion over a distant actor, then courts should consider the nature of the com-
munity 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 discus-
sion 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 un-
doubtedly evolve over time. The crucial point, however, is that these dis-
cussions would not be truncated by a formulaic test that bears scant relation-
ship to the core questions underlying the social meaning of jurisdiction.
2. A Jurisdictional Framework for Non-State Communities
A truly pluralist conception of jurisdiction also allows us to make sense
of non-state assertions of jurisdiction. Consider the bold (or utopian) im-
pulse 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 notwith-
standing facts and law? Will you order everyone to be good? Perhaps, per-
haps you will judge the dead? Or even bring God as a defendant? The possi-
bilities are endless and the question arises whether or why one should or
should not try something outlandish, impossible, or just plain daring.
805
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 sovereigns 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
805
Cover, supra note 2, at 187.
2002] GLOBALIZATION OF JURISDICTION 489
it fails to describe adequately the increasingly extraterritorial and non-state
nature of actual legal practice. Moreover, by imagining the creation of ju-
risdiction we can see the transformative way in which alternative assertions
of legal jurisdiction can be linked to the articulation and development of al-
ternative norms and community definitions.
Looking more closely at the process of jurisdiction-creation, we can
imagine a non-state community coming together and purporting to adjudi-
cate a dispute.806
Obviously, its judgment is not self-executing; some entity
with police power must enforce it. Thus, the question becomes not whether
a community can assert jurisdiction, but whether other communities are
willing to give deference to the judgment rendered and enforce it as if it
were their own. This is the process of judgment recognition familiar to
those who study conflict of laws. A tribunal asserts jurisdiction over a dis-
pute, and then other jurisdictions must decide whether to confer legitimacy
on that tribunal by recognizing and enforcing its judgment. Thus, even at
the moment that a community daringly invents its own legal jurisdiction, it
is immediately forced to acknowledge that its invention is limited by the
willingness of others to accept the judgment as normatively legitimate.807
We have already seen how formal international tribunals, though estab-
lished by agreements of nation-states, can contribute to the generation of in-
ternational human rights standards that ultimately limit state prerogatives.808
Here the process of jurisdictional assertion and rhetorical persuasion has
helped to develop norms over time. For example, one of the great accom-
plishments of the war crimes tribunals established after World War II was
"the capacity of the event to project a new legal meaning into the future."809
806
Robert Cover offers the example of a group of Jews in a small city in Galilee in 1538.
This group attempted to constitute a Jewish court even though its authority to do so was dubi-
ous. Significantly, the leaders of the group apparently determined that they could not assert
jurisdiction on their own. Thus, they proclaimed their act in a message sent to Jerusalem
seeking recognition. Id. at 190-92. 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. Id. at 193.
807
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 are real constraints on the engineering
of that bridge. 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?").
808
Supra note 172 and accompanying text.
809
Cover, supra note 2, at 196. Robert Jackson, chief prosecutor at the Nuremberg tri-
als, made a similar argument at the time:
We have also incorporated [the trial's] 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 judgment
such as has been rendered shifts the power of the precedent to the support of these
490 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
As Charles Wyzanski, who originally opposed the creation of the Nurem-
berg tribunals, 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."810
Significantly, Wyzanski's state-
ment reveals that he came to believe not only that the tribunals were legiti-
mate, but also that they served a norm-creating function that went beyond
the realm of political or military power and that could not have been
achieved through the use of such power. Thus, sometimes the assertion of
legal jurisdiction, even more than the assertion of military or political mus-
cle, may help inculcate norms for the future.811
Moreover, these norms, once created and developed into a functioning
body of human rights law, are not so easily circumscribed. Therefore, al-
though it has been said that the Nuremberg and Tokyo trials after World
War II themselves represented mere victors' justice,812
the norms estab-
lished in those trials have helped spawn a large body of human rights norms
and a working consensus (fragile though it sometimes is) regarding en-
forcement of those norms.813
I have already discussed the case of Augusto
Pinochet, in which a Spanish judge asserted jurisdiction over the former
Chilean dictator and almost succeeded in convincing the world to accede to
that assertion.814
Other transnational human rights actions, both criminal
and civil, have been attempted or are pending around the world, and the In-
ternational Criminal Court, though controversial, has been established. This
normative universe of human rights enforcement through legal apparatus is
a direct result of the jurisdiction-creation at Nuremberg.
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.
REPORT OF ROBERT H. JACKSON, UNITED STATES REPRESENTATIVE TO THE INTERNATIONAL
CONFERENCE ON MILITARY TRIALS 437 (Int'l Org. & Conference Series II, U.S. Dep't of
State Publ'n No. 3080, 1945).
810
Charles E. Wyzanski, Jr., Nuremberg in Retrospect, 178 ATLANTIC MONTHLY 56
(1946) (emphasis added), reprinted in THE NEW MEANING OF JUSTICE 137, 144 (1965).
811
For a recent article using Cover's work to support the idea that international trials
help create and develop norms, see Dickinson, supra note 521, at 1477-90.
812
See, e.g., 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).
813
See Cover, supra note 2, at 196-97 (noting the precedents created by the Nuremberg
and Tokyo trials).
814
See supra notes 34-37, 186-88 and accompanying text (discussing the international
reaction to the attempt to prosecute Pinochet in Spain).
2002] GLOBALIZATION OF JURISDICTION 491
Formal international trials such as those held at Nuremberg are not the
only ways in which non-state legal jurisdiction can be created and exercised,
however. Non-state communities also assert lawmaking power through
more informal networks and organizations and through the slow accretion of
social custom itself. 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.815
Even in modern
nation-states, we see a whole range of non-state lawmaking in tribal or eth-
nic enclaves,816
religious organizations,817
corporate bylaws, social cus-
toms,818
private regulatory bodies, and a wide variety of groups, associa-
tions, and non-state institutions.819
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.820
Even more
815
See EUGEN EHRLICH, FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF LAW 14-38
(Walter L. Moll trans., 1936) (analyzing and describing the differences between legal and
nonlegal norms). See generally OTTO GIERKE, ASSOCIATIONS AND LAW: THE CLASSICAL
AND EARLY CHRISTIAN STAGES (George Heiman ed. & trans., Univ. of Toronto Press 1977)
(n.d.) (setting forth a legal philosophy based on the concept of association as a fundamental
human organizing principle); OTTO GIERKE, NATURAL LAW AND THE THEORY OF SOCIETY:
1500 TO 1800 (Ernest Barker trans., Cambridge Univ. Press 1934) (1913) (presenting a theory
of the evolution of the state and non-state groups according to the principle of natural law).
816
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 be-
tween the legal system of the Romani people and the norms of their host countries).
817
See, e.g., CAROL WEISBROD, THE BOUNDARIES OF UTOPIA (1980) (examining the
contractual underpinnings of four nineteenth-century American religious utopian communi-
ties: the Shakers, the Harmony Society, Oneida, and Zoar). As Marc Galanter has observed,
the field of church and state is the "locus classicus of thinking about the multiplicity of nor-
mative orders." Galanter, supra note 33, at 28; see also Carol Weisbrod, Family, Church and
State: An Essay on Constitutionalism and Religious Authority, 26 J. FAM. L. 741 (1988) (ana-
lyzing church-state relations in the United States from a pluralist perspective).
818
See, e.g., LON L. FULLER, ANATOMY OF THE LAW 43-49 (1968) (describing "implicit
law," which includes everything from rules governing a camping trip among friends to the
customs of merchants).
819
See, e.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE
DISPUTES (1991) (drawing on an empirical study of relations among cattle ranchers to develop
a theory of nonlegal norms as a source of social control); Stewart Macaulay, Images of Law in
Everyday Life: The Lessons of School, Entertainment, and Spectator Sports, 21 LAW &
SOC'Y REV. 185 (1987) (discussing the concept of legality as reflected in popular culture);
Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 AM.
SOC. REV. 55 (1963) (presenting empirical data on nonlegal dispute settlement in the manu-
facturing industry); Stewart Macaulay, Popular Legal Culture: An Introduction, 98 YALE L.J.
1545 (1989) (surveying the sources of popular perceptions of the law).
820
See F.W. Maitland, Trust and Corporation, in MAITLAND: SELECTED ESSAYS 141,
189-95 (H.D. Hazeltine et al. eds., 1936) (1905) (describing the sophisticated nonlegal means
of enforcing order among members of these institutions).
492 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
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 Reisman has called "microlegal
systems."821
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 lawmaking 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."
822
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 takes place before non-state arbitral panels.823
Likewise, non-
governmental standard-setting bodies, from Underwriters Laboratories
(which tests electrical and other equipment) to the Motion Picture Associa-
tion of America (which rates the content of films) to the Internet Corpora-
tion for Assigned Names and Numbers (which administers the Internet do-
main name system), construct detailed normative systems with the effect of
law. Regulation of much financial market activity is left to private authori-
ties such as stock markets or trade associations like the National Association
of Securities Dealers. And, to take a rather mundane example, lawmaking
authority over sports events is generally left to non-state entities (such as
referees) whose decisions are not usually reviewable except within the sys-
tem established by the sports authority or league.824
821
For discussions of verbal and nonverbal cues that govern social behavior, see Mi-
chael 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. INT'L L. & POL'Y 165 (1983); Michael Reisman, Rapping and Talking to the Boss:
The Microlegal System of Two People Talking, in CONFLICT AND INTEGRATION:
COMPARATIVE LAW IN THE WORLD TODAY 61 (Inst. of Comparative Law in Japan, Chuo
Univ. ed., 1988).
822
Weyrauch & Bell, supra note 816, at 328 (quoting THOMAS A. COWAN & DONALD
A. STRICKLAND, THE LEGAL STRUCTURE OF A CONFINED MICROSOCIETY, at i (Univ. of Cal.,
Berkeley, Internal Working Paper No. 34, 1965)).
823
See, e.g., YVES DEZALAY & BRYANT G. GARTH, DEALING IN VIRTUE:
INTERNATIONAL COMMERCIAL ARBITRATION AND THE CONSTRUCTION OF A
TRANSNATIONAL LEGAL ORDER 5-9 (1996) (noting the "tremendous growth" in international
commercial arbitration over the past twenty-five to thirty years).
824
See, e.g., Ga. High Sch. Ass'n v. Waddell, 285 S.E.2d 7, 9 (Ga. 1981) (holding that a
dispute over a referee's decision affecting the outcome of a high school football game was
nonjusticiable). But see PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001) (ruling that a
2002] GLOBALIZATION OF JURISDICTION 493
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's recognition of non-state lawmaking 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."825
Sometimes
such incorporation is explicit, as when a statute is interpreted (or even sup-
planted) by reference to industry custom826
or when a law of sales that
would accord with merchant reality was adopted in the Uniform Commer-
cial Code.827
Even when the impact of non-state norms is unacknowledged,
however, state-sponsored law may only be deemed legitimate to the extent
that its official pronouncements reflect the "common understandings of pri-
vate laws and customs."828
Indeed, the invention of legal fictions often in-
dicates that official norms are being adjusted to reflect more closely the dic-
tates of non-state norms and practices.
In addition, non-state assertions of jurisdiction may sometimes take the
guise of more formal legal proceedings. For example, in 1933, as five
Communists accused by Hitler of setting fire to the Reichstag building in
Berlin were tried in Germany, Arthur Garfield Hays--counsel for the
American Civil Liberties Union--helped to organize a "Counter Trial" in
London.829
This "trial" used the formalities of legal process to enact a "pub-
licly deliberative drama."830
According to Hays, the Counter Trial helped
golf association had violated the Americans with Disabilities Act by preventing a partially
disabled golfer from using a golf cart to compete); Bart Aronson, Pinstripes and Jailhouse
Stripes: The Case of "Athlete's Immunity," FindLaw Corporate Counsel Center (Nov. 3,
2000), at http://writ.corporate.findlaw.com/aronson/
20001103.html (criticizing the blanket refusal to apply criminal law sanctions to athletes' ac-
tions during sporting events).
825
Weyrauch & Bell, supra note 816, at 330.
826
See, e.g., FULLER, supra note 818, at 57-59 (arguing that the act of interpretation
permits courts to adjust official legal norms to match custom or usage); JAMES WILLARD
HURST, LAW AND ECONOMIC GROWTH: THE LEGAL HISTORY OF THE LUMBER INDUSTRY IN
WISCONSIN 1836-1915, at 289-94 (1964) (describing the ways in which local norms in the
Wisconsin lumber industry played a significant role in the way contract law was applied).
827
See Zipporah Batshaw Wiseman, The Limits of Vision: Karl Llewellyn and the Mer-
chant Rules, 100 HARV. L. REV. 465, 503-19 (1987) (describing Karl Llewellyn's initial drafts
of what later became Article 2 of the Uniform Commercial Code).
828
Weyrauch & Bell, supra note 816, at 329.
829
See Louis Anthes, Publicly Deliberative Drama: The 1934 Mock Trial of Adolph
Hitler for "Crimes Against Civilization," 42 AM. J. LEGAL HIST. 391, 398-99 (1998) (describ-
ing the trial).
830
Id. at 393. Anthes defines this term as "the improvising of legal formality to foster
debate." Id.
494 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
"to engage `public opinion' and to set a `valuable precedent' by which the
actions of the German tribunal could be measured."831
Even the German
court ultimately felt the need to refute the findings of the London proceed-
ings in order to combat the international impact of the Counter Trial.832
Ac-
cording to Arthur Koestler, the Counter Trial "was a unique event in crimi-
nal history" because it caused the German court to "concentrate its efforts
on refuting accusations by a third, extraneous party."833
The following year, Hays and others organized a trial styled the "Case
of Civilization Against Hitler" as part of a rally at Madison Square Garden
in New York City.834
Twenty thousand people in attendance and thousands
more listening live over the radio heard an indictment, testimony from
nearly two dozen witnesses, a summation by a former New York Court of
Appeals judge, and a judgment of the court pronounced by a local minis-
ter.835
Newspaper accounts the following day reported that Hitler had been
found guilty of high "crime against civilization"836
and that the trial "ren-
dered solemn judgment that the Nazi government stood convicted before the
world."837
Thus, non-state assertions of jurisdiction may mobilize popular
opinion in resistance to state-sanctioned norms and may also create a con-
text for telling a counternarrative about historical events.
The "Women's International War Crimes Tribunal 2000" represents a
more recent, though similar, use of legal forms to construct an alternative
history. This self-styled "peoples' tribunal"--convened in Tokyo from De-
cember 8 to 12, 2000--heard evidence concerning the criminal liability for
crimes against humanity of both Japan and its high-ranking military and po-
litical officials for rape and sexual slavery arising out of Japanese military
activity in the Asia-Pacific region during the 1930s and 1940s.838
Frustrated
by the denials of Japanese government officials839
and by failure in lawsuits
before state-sanctioned courts,840
survivors of these alleged offenses turned
831
Id. at 399.
832
See id. (noting that in doing so, the German court was apparently seeking "to mini-
mize the loss of international goodwill").
833
ARTHUR KOESTLER, THE INVISIBLE WRITING: BEING THE SECOND VOLUME OF
ARROW IN THE BLUE, AN AUTOBIOGRAPHY 200 (1954).
834
See Anthes, supra note 829, at 391-94 (describing the trial in terms of both culture
and politics).
835
Id. at 391-92.
836
Nazis "Convicted" of World "Crime" by 20,000 in Rally, N.Y. TIMES, Mar. 8, 1934,
at 1.
837
Id.
838
Christine M. Chinkin, Women's International Tribunal on Japanese Military Sexual
Slavery, 95 AM. J. INT'L L. 335, 335 (2001).
839
See id. (describing Japan's continued official denial of legal responsibility).
840
See, e.g., Japan Overturns Sex Slave Ruling, BBC NEWS (Mar. 29, 2001), at
2002] GLOBALIZATION OF JURISDICTION 495
to international NGOs.841
After initial conferences were held in Tokyo and
Seoul, an International Organizing Committee for the tribunal was
formed.842
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.843
Indeed, "[t]he
shared experience of Japanese colonization brought North and South Ko-
rean prosecutors together with a joint indictment--an expression of com-
mon purpose that continues to be unthinkable at the governmental level."844
The prosecution presented evidence for three days.845
More than seventy-
five survivors were present. Many of those present gave evidence, and
other survivors recorded video interviews or signed affidavits that were en-
tered into evidence by the prosecution.846
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."847
After the closing of evidence and argument, the judges began deliberat-
ing, assisted by a team of legal advisers.848
They prepared a preliminary
judgment, which was presented to an audience of more than one thousand
people.849
The judgment found Emperor Hirohito "guilty of the charges on
the basis of his command responsibility."850
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 in-
ternational law relating to slavery, trafficking, forced labor, and rape,
amounting to crimes against humanity."851
The judges subsequently pro-
http://news.bbc.co.uk/1/hi/world/asia-pacific/1249236.stm (discussing the decision by Hi-
roshima's High Court to overturn the only successful claim for compensation in Japanese
courts).
841
See Chinkin, supra note 838, 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 In-
ternational Conference on Violence Against Women in War and Armed Conflict Situations
was held in Tokyo in 1997").
842
Id.
843
Id.
844
Id.
845
Id. at 337.
846
Id.
847
Id. at 338.
848
Id.
849
Id.
850
Id.
851
Id.
496 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
posed a range of reparations and made other recommendations.852
Other non-state tribunals have similarly sought to inculcate the norms
embodied in international or international human rights law. For example,
the 1967 "International War Crimes Tribunal" convened by Bertrand Rus-
sell and Jean-Paul Sartre purported to adjudicate whether the United States
had violated international law in prosecuting the Vietnam War.853
Likewise,
"private citizens of high moral authority" from several countries established
a "Permanent People's Tribunal" in Italy in the 1970s.854
This tribunal ex-
isted for a number of years and examined a series of alleged violations of
international law to which there had been inadequate official response, in-
cluding the Soviet military intervention in Afghanistan, that of Indonesia in
East Timor, and the alleged genocide of Armenians by the Turks in the pe-
riod from 1915 through 1919.855
In 1984, another People's Tribunal was
convened to gather evidence concerning the Armenian genocide.856
A re-
cent film, The Trials of Henry Kissinger (based on a 2001 book of the same
name by Christopher Hitchens), assembles historians, politicians, and others
to assess the former U.S. Secretary of State's criminal responsibility for
U.S. military activities in Vietnam and Cambodia.857
In some ways, of course, such assertions of jurisdiction are purely sym-
bolic acts. Yet, 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."858
Moreover,
the reports issued by such tribunals provide a valuable alternative source of
evidence and jurisprudence pertaining to contested applications of interna-
tional law. And even these "quasi-legal" fora can constitute a form of pub-
lic acknowledgment to the survivors that serious crimes were committed
against them.859
852
Id.
853
See Cover, supra note 2, at 198-201 (describing this non-state tribunal as arising from
a lack of state opposition to the war). For the report of this tribunal, see AGAINST THE CRIME
OF SILENCE: PROCEEDINGS OF THE RUSSELL INTERNATIONAL WAR CRIMES TRIBUNAL (John
Duffett ed., 1968).
854
Richard Falk, The Rights of Peoples (in Particular Indigenous Peoples), in THE
RIGHTS OF PEOPLES 17, 28 (James Crawford ed., 1988).
855
Id. at 28-29.
856
See generally THE PERMANENT PEOPLES' TRIBUNAL, A CRIME OF SILENCE: THE
ARMENIAN GENOCIDE (1985).
857
See Ronnie Scheib, Film Review: The Trials of Henry Kissinger, VARIETY, July 15-
21, 2002, at 27 ("Is Henry Kissinger, America's revered elder statesman and Nobel Peace
Prize winner, a war criminal? That's the question posed by this startling BBC docu[mentary]
that starts with the accusations leveled by Christopher Hitchens in his recent book.").
858
Chinkin, supra note 838, at 339 (quoting Falk, supra note 854, at 29).
859
Of course, such tribunals' impact undoubtedly depends in part on the power and re-
2002] GLOBALIZATION OF JURISDICTION 497
Thus, calling the tribunals "extralegal" or "symbolic" does nothing to
lessen their claims to produce norms or to affect people. After all, even
state entities pursue trials that are largely symbolic, such as the French trial
against Klaus Barbie860
and the proposed Spanish trial of Pinochet himself.
In the past three decades, we have also seen the rise of truth commissions,
the primary aim of which is story-telling in order to create a record of past
abuses.861
Lawsuits in the United States seeking reparations for slavery862
serve as another example of the way in which juridical mechanisms can be
used to affect collective memory. Finally, one might see the creation of the
International Criminal Court863
(a new form of international jurisdiction-
assertion) as evidence that the norms these non-state tribunals sought to in-
culcate have taken hold.
Of course, some communities may embrace norms that many would
find undesirable. For example, white supremacist militia groups might well
attempt to assert jurisdiction over their perceived enemies. Other communi-
ties might seek to impose norms that conflict with evolving international
human rights standards. Hierarchy and oppression abound within many
communities, and merely uttering the talismanic word "community" does
not transform human behavior into sweetness and light. Thus, any theory of
jurisdiction that requires deference to these sorts of alternative normative
visions would likely prove unacceptable.
Yet, it is important to recognize that, in order for the legal norms of a
sources of the entities or individuals sponsoring and publicizing them.
860
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 505, at 1322 (observing
that the trial was viewed by some as "an occasion for self-improvement"). Binder quotes
French government officials referring to the proceedings as "a pedagogic trial," Israeli gov-
ernmental 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 state-
ment 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.'" Id.
861
See, e.g., HAYNER, supra note 509, at 32 (listing twenty-one truth commissions con-
vened between 1974 and 2001); MINOW, supra note 509, at 52-54 (recounting the creation of
several truth commissions contemporaneously with the establishment of South Africa's in
1995).
862
See, e.g., Joe R. Feagin & Eileen O'Brien, The Growing Movement for Reparations,
in WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS
FOR HUMAN INJUSTICE 341 (Roy L. Brooks ed., 1999) (describing the growing reparations
movement within the United States).
863
Despite U.S. resistance to the ICC, see supra note 209 (describing the Bush admini-
stration's objections to the ICC), an overwhelming percentage of the world's countries have
signed the ICC treaty, and the court held its first assembly in September 2002, Elizabeth
Becker, U.S. Presses for Total Exemption from War Crimes Court, N.Y. TIMES, Oct. 9, 2002,
at A6.
498 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
non-state community to be enforced, such norms must be adopted by those
with coercive power, and abhorrent assertions of community dominion are
unlikely to achieve widespread acceptance. Thus, the enforcement arena
would provide a powerful incentive to communities not to move too far
away from a developing international consensus. In a sense, this is how
even state-sanctioned courts operate because they lack their own enforce-
ment power. Courts always issue decisions at the sufferance of their "sov-
ereign," and if they choose to defy the entity that enforces their judgments,
they must appeal to a broad base of popular support or risk being treated as
politically irrelevant. Likewise, a non-state jurisdictional assertion, 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 the assertion of community do-
minion is appropriate and that the substantive norms expressed are worth
adopting. The cosmopolitan pluralist conception of jurisdiction does not
imply that all assertions of jurisdiction (much less all normative rules im-
posed) are justified; it only argues that we extend the term jurisdiction to
these non-state norm-producing acts. In this way, multiple communities can
attempt to claim the mantle of law, making it more likely that we will at
least notice these alternative visions, regardless of whether such visions are
ultimately adopted broadly or roundly rejected.864
B. Application of the Framework
I leave to another day the task of applying the cosmopolitan pluralist
conception of jurisdiction to all ten problems identified earlier. Indeed,
given that the framework described above explicitly relies on the common
law development of jurisdictional norms, a programmatic mapping of the
contours of the framework is inappropriate. Nevertheless, by focusing on a
few particularly rich examples, we can gain some sense of the conceptual
space opened up by this framework and the useful insights that may result.
Thus, I return to three sites: the American jurisprudence of minimum con-
tacts in cyberspace; the French prosecution of Yahoo!; and the question of
jurisdiction in international human rights law, focusing in particular on the
Spanish prosecution of Augusto Pinochet and the assignment of community
membership in the detention and prosecution of accused Al Qaeda support-
ers. I choose these because they derive from doctrinal areas (cyberspace
law, civil procedure/conflict of laws, international law) that are usually
treated as quite distinct. Indeed, I believe we lose a great deal because we
864
Cf. Cover, supra note 2, at 176 (referring to law as the bridge in normative space that
connects reality to "alternity").
2002] GLOBALIZATION OF JURISDICTION 499
tend to segregate these questions into different areas of law rather than
viewing the problem of jurisdiction as a whole. By exploring these exam-
ples, we may begin to appreciate important ways in which international law
and cyberspace law are converging around common questions concerning
the social meaning of legal jurisdiction.
1. The Minimum Contacts Inquiry
As previously discussed, American courts have struggled in recent
years to apply the International Shoe minimum-contacts test in cyber-
space.865
This struggle has resulted in a series of analytical frameworks
quickly taken up and just as quickly discarded. The instability of the doc-
trine indicates that courts are straining against the existing jurisdictional
tests because those tests are in tension with a felt imperative about when the
assertion of jurisdiction seems appropriate.
Surveying the development of American jurisdiction jurisprudence, we
saw a similar instability during the decades between Pennoyer866
and Inter-
national Shoe.867
During that transitional period, courts used Pennoyer's
territorial framework, but repeatedly carved out legal fictions to respond to
social change.868
Ultimately, International Shoe recognized the fictions and
codified a new framework based not on pure territorial power but on con-
tacts.869
Since International Shoe, courts have used the language of mini-
mum contacts, but have in fact used the International Shoe test as a proxy
for analyzing the "fairness" of asserting jurisdiction.870
Now, with regard to
865
See supra Part II.J.1 (surveying various judicial attempts to establish a workable test
for personal jurisdiction in cyberspace cases, and concluding that no approach has yet proven
sucessful).
866
Pennoyer v. Neff, 95 U.S. 714 (1877).
867
International Shoe Co. v. Washington, 326 U.S. 310 (1945).
868
See Philip B. Kurland, The Supreme Court, the Due Process Clause and the In Per-
sonam Jurisdiction of State Courts, From Pennoyer to Denckla: A Review, 25 U. CHI. L. REV.
569, 585-86 (1958) (describing the difficulty in applying Pennoyer's principles to a world fac-
ing changes in economic activity, means of transportation, and communication).
869
In International Shoe, the Court admitted that
some of the decisions holding the corporation amenable to suit have been supported
by resort to the legal fiction that it has given its consent to service and suit, consent
being implied from its presence in the state through the acts of its authorized agents.
But more realistically it may be said that those authorized acts were of such a nature
as to justify the fiction.
326 U.S. at 318 (citations omitted).
870
See, e.g., Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987) (plural-
ity opinion) (using International Shoe's "traditional notions of fair play and substantial jus-
tice" language to support the need for a separate inquiry (in addition to minimum contacts)
that focuses on "the burden on the defendant, the interests of the forum State, . . . the plain-
tiff's interest in obtaining relief[,] . . . the interstate judicial system's interest in obtaining the
500 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
cases involving cyberspace contacts, courts are continuing to articulate the
International Shoe test and to use the language of fairness, but they increas-
ingly appear to be responding to a somewhat different concern: Is this far-
off website operator properly considered a member of my community?
Indeed, a survey of the cyber-jurisdiction case law from the past few
years indicates that courts may be analyzing cases through the lens of com-
munity definition and the social meaning of legal jurisdiction, even while
continuing to use the language of fairness and minimum contacts. For ex-
ample, in Bensusan Restaurant Corp. v. King,871
the Second Circuit con-
strued New York's long-arm statute for conferring jurisdiction over a for-
eign domiciliary. The court concluded that an owner of a Missouri cabaret
called "The Blue Note" could not be sued in New York for trademark in-
fringement, despite the fact that the cabaret's website included an unauthor-
ized link to the website of a famous New York jazz club also called "The
Blue Note."872
The court rebuffed the plaintiff's efforts to show a number
of contacts between New York and the Missouri Blue Note (including the
website itself),873
concluding instead that the Missouri club was of "local
character" and therefore not subject to jurisdiction in New York.874
By fo-
cusing on the "character" of the Missouri business, the court appears implic-
itly to have concluded that the Missouri club was properly deemed a com-
munity member of Missouri, despite its contacts with New York.
Similarly, in Cybersell, Inc. v. Cybersell, Inc.,875
an Internet domain
name dispute between corporations based in Florida and Arizona, the Ninth
Circuit eschewed a strict reliance on minimum contacts. Instead, the court
ruled that physical contacts with the forum state were unnecessary if the de-
fendant "has created continuing obligations to forum residents."876
Al-
though the court ultimately declined to exercise jurisdiction, its analysis fo-
cused on whether or not the Florida corporation, through its website, had
created any substantive ties to Arizona, rather than on the number of con-
tacts.
most efficient resolution of controversies and the shared interest of the several States in fur-
thering fundamental substantive social policies" (internal quotation marks and citation omit-
ted)).
871
126 F.3d 25 (2d Cir. 1997).
872
Id. at 27.
873
The plaintiff attempted to establish New York's jurisdiction over the Missouri web-
site by focusing on the booking of nationally recognized acts at the Missouri club and the
revenues earned from customers who, although students of the University of Missouri, were
domiciliaries of other states. Id. at 29.
874
Id.
875
130 F.3d 414 (9th Cir. 1997).
876
Id. at 417.
2002] GLOBALIZATION OF JURISDICTION 501
Finally, although many courts have formally adopted the Zippo877
test
that looks to the degree of interactivity of the website,878
courts have often
refused to assert jurisdiction despite the undisputedly interactive nature of
the site in question when there were insufficient community ties to the fo-
rum.879
In the same vein, an "effects" test that finds jurisdiction anywhere
the impact of a website is felt seems to make judges uneasy, perhaps be-
cause the test seems divorced from an analysis of community affiliation.
Thus, in some cases the idea of jurisdiction based on the viewing of a web-
site in a distant location seems attenuated despite the existence of a "con-
tact" between the site and its viewer.880
In other cases, however, courts are
aware of the potentially deleterious effects of a far-off website on a commu-
nity and, hence, feel compelled to assert jurisdiction.881
In either instance, a
contacts-based framework does not seem to capture the true analytical tug-
of-war that is taking place.
A jurisdictional analysis focusing on community affiliation, however,
has the virtue of placing the core questions of jurisdiction front and center.
Courts would be able to articulate the substantive concerns about both
overly broad and overly narrow assertions of jurisdiction and thereby begin
to delineate jurisdictional norms that respond to the social meaning of
community affiliation. Thus, in Bensusan, the court could have inquired
further into the question of the Missouri nightclub's community ties to New
York. For example, is the community of musicians and audience members
sufficiently interrelated that it would make sense to say that there is a com-
mon community affiliation between The Blue Note in New York and the
one in Missouri? Indeed, the fact that the Missouri club named itself The
Blue Note (probably as a homage to the New York club) and posted a link
to the New York club on its website indicates a felt connection between the
two parties because of the musical heritage that they share. On the other
hand, further inquiry might indicate no real overlap in the community of au-
dience members (who are, presumably, the consumers of the website at is-
sue in the case) and predominantly local ties in Missouri. Additionally, a
court could ask to what degree the purported harm suffered by the New
877
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
878
See supra note 427 (listing cases applying the Zippo test).
879
See supra notes 432-43 and accompanying text (discussing cases in which courts
have departed from the Zippo test and instead have applied an "effects" test based on the Su-
preme Court's opinion in Calder v. Jones, 465 U.S. 703, 751 (1984)).
880
See, e.g., Winfield Collection, Ltd. v. McCauley, 105 F. Supp. 2d 746, 751 (E.D.
Mich. 2000) (refusing to assert jurisdiction over an out-of-state defendant despite web-based
sales in the forum state).
881
See, e.g., supra notes 416-19 and accompanying text (discussing some courts' will-
ingness to extend jurisdiction based on Internet contacts).
502 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
York club implicates core notions of community such that it is necessary to
assert New York's community dominion over the Missouri club.
Similarly, in Cybersell a community-based approach would go beyond
a mechanical counting of web "hits" in Arizona of a Florida-based web-
site.882
Instead, the inquiry would focus on whether the Florida website had
created ties with the Arizona community and the degree to which it was
necessary for Arizona to assert dominion over a harmful (though territori-
ally distant) actor.
2. The Yahoo! Case
The Yahoo! case883
illustrates the way a community-based analysis
changes the structure of the jurisdictional debate. The French court's deci-
sion to assert jurisdiction over Yahoo.com for material on its non-French
servers set off alarms because the ruling raised the specter of website opera-
tors' being subject to suit anywhere their sites are accessed.884
Theoreti-
cally, this could lead to a form of universal jurisdiction because sites are
routinely accessible throughout the world, potentially permitting almost any
governmental entity to assert jurisdiction. And as discussed previously,
geographical filters may be ineffective885
and overly burdensome while
greatly diminishing the value of online communication.886
We have seen three main alternative theoretical approaches in response
to such a jurisdictional problem. First, the Johnson and Post approach
would deny the sovereign authority of territorially based governments, such
as France, to regulate Yahoo!.887
Second, the Lessig approach would look
for reciprocal governmental agreements whereby different countries agree
to police each other's norms with respect to online transactions.888
Third,
the Goldsmith approach would assume that the French judgment is unen-
882
See supra text accompanying notes 875-76 (discussing Cybersell).
883
For a discussion of the decision by a French court to issue an injunction against Ya-
hoo!, see supra Part I.D.
884
See supra note 95 and accompanying text (discussing the extraterritorial impact of
the French court's decision).
885
See supra text accompanying note 273 (noting that only about seventy percent of
French Internet users could be filtered).
886
See supra notes 293-95 and accompanying text (explaining the difficulty of using
geographical location as the basis for permitting access to websites); see also supra text ac-
companying notes 313-19 (speculating that filters might diminish certain benefits of cyber-
space communication by zoning content based on geography).
887
See supra Part II.A (discussing arguments put forth by Johnson and Post in favor of
decentralized decision making over the Internet).
888
See supra Part II.D (examining Lessig's approach to the regulation of cyberspace
through reciprocal enforcement).
2002] GLOBALIZATION OF JURISDICTION 503
forceable in the United States (or elsewhere), making the power of the
French judgment dependent on the enforceability of the order within France
itself.889
In analyzing the way in which a cosmopolitan pluralist conception of
jurisdiction differs from each of these three approaches, it is essential to
emphasize once more that the question of jurisdiction has two different
components: first, the assertion of jurisdiction by one community; and sec-
ond, the willingness of other communities to recognize and enforce the
judgment that results from the initial jurisdictional assertion. Of course,
these two inquiries often overlap. For example, if the second community
decides that the initial assertion of jurisdiction was invalid, it will be reluc-
tant to enforce the judgment rendered. Nevertheless, for a cosmopolitan
conception of jurisdiction, the distinction is crucial because the assertion of
jurisdiction represents not only an effort to impose coercive authority but
also the very ability to assert community dominion, articulate norms, and
thereby generate debate. This jurisdictional assertion, therefore, may have
an important symbolic or rhetorical value in and of itself, even if the judg-
ment rendered does not initially persuade other communities to enforce the
norms articulated. Indeed, in a cosmopolitan pluralist conception, the asser-
tion of jurisdiction is first and foremost a mechanism for opening space for
debate about community affiliation and substantive norms. Such norms,
even if they are not able to persuade others in the near term, may gain trac-
tion over time and may ultimately be accepted more broadly. In contrast, if
jurisdiction is not asserted at all, courts cannot reach the "merits" and no
substantive norms are articulated.
Accordingly, a cosmopolitan pluralist approach would take seriously
the Johnson and Post challenge to the legitimacy of France's assertion of
jurisdiction. Instead of simply denying the ability of territorially based sov-
ereigns to exercise jurisdiction, however, it would require the French court
to articulate the rationale for treating Yahoo.com as a member of the French
community. Such an approach would allow us to see that the French asser-
tion of jurisdiction in this case was not the wholly arbitrary exercise of terri-
torial jurisdiction that has often been portrayed. Rather, Yahoo! is a sophis-
ticated, multinational operator, with a business plan aimed at reaching web
users worldwide,890
a marketing strategy touting its "global footprint,"891
889
See supra Part II.I (presenting Goldsmith's view that the regulation of cyberspace
does not present new conceptual challenges).
890
See Yahoo! Inc., 1999 Annual Report Form 10-K (filed with the SEC Mar. 30, 2000)
[hereinafter Yahoo! 1999 Annual Report] ("Yahoo! Inc. . . . is a global Internet communica-
tions, commerce and media company that offers a comprehensive branded network of services
to more than 120 million users each month worldwide."),
504 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
and a French subsidiary in which it owns a seventy percent ownership
stake.892
Indeed, Yahoo! exerted substantial control over this subsidiary,
dictating some of the links and content of the French site and requiring the
subsidiary to maintain links to its United States-based site.893
Moreover,
Yahoo! routinely profiled French users in order to target them with adver-
tisements written in French.894
These facts might well make the assertion of
jurisdiction in France reasonable.
Assuming the French assertion of jurisdiction is legitimate, the Lessig
and Goldsmith approaches concern the extent to which such a judgment
should be enforceable outside of France. Lessig's approach envisions the
United States government agreeing to enforce the French judgment so long
as France agrees to police French websites for content that the U.S. gov-
ernment deems objectionable. As discussed previously, however, such an
agreement seems unlikely, particularly in a case like Yahoo! that implicates
core First Amendment values under the U.S. Constitution.895
Indeed, U.S.
government enforcement of the French judgment could trigger a separate
First Amendment lawsuit.896
Goldsmith, however, moves too far in the
other direction, assuming that if the French court is unable to satisfy its
judgment by acting against Yahoo!'s French assets no further action will be
possible. In making such an assertion, Goldsmith assumes a rigidly formal-
ist world of nation-state sovereignties whereby a judgment in one country
will necessarily remain unrecognized elsewhere.
In contrast, a cosmopolitan pluralist conception acknowledges that
norms articulated by a court in one country might well be recognized and
adopted in another country depending on the logic of the jurisdictional as-
sertion and the force of the norms.897
At the same time, however, a com-
http://www.sec.gov/Archives/edgar/data/1011006/0000912057-00-014598-d1.html.
891
See Press Release, Yahoo! Inc., Yahoo! Reports Fourth Quarter, Year End 2000 Fi-
nancial Results (Jan. 10, 2001), at http://docs.yahoo.com/docs/pr/4q00pr.html (stating that
Yahoo! "remained committed to broadening its global footprint and maintaining a leadership
position worldwide").
892
Yahoo! 1999 Annual Report, supra note 890.
893
See Yahoo! France License Agreement, art. 3 (Nov. 1, 1996), in Yahoo! Inc., 1997
Annual Report Form 10-K (filed with the SEC Mar. 30, 1997) (setting forth the terms of the
licensing agreement between Yahoo! Inc. and Yahoo! France),
http://www.sec.gov/Archives/edgar/data/1011006/0000912057-97-011353.txt.
894
See T.G.I. Paris, May 22, 2000, http://www.juriscom.net/txt/jurisfr/cti/
tgiparis20000522.htm (describing Yahoo!'s practice of profiling and targeting French users).
895
See supra Part II.D (recognizing that U.S. enforcement of the French order might
raise First Amendment issues).
896
But see supra note 305 (questioning whether mere enforcement of a foreign judgment
is sufficient to be deemed state action under U.S. constitutional law).
897
The enforcing court might also consider the extent to which the rendering court's
judgment actually can be said to represent the voice of the "community" it claims to reflect.
2002] GLOBALIZATION OF JURISDICTION 505
munity-based conception of jurisdiction would require the original court to
set forth a rationale for asserting community dominion over the case, a ra-
tionale that subsequently would be scrutinized by courts asked to enforce
the judgment elsewhere.
Turning again to Yahoo!, under a cosmopolitan pluralist approach, a
U.S. district court faced with the question of whether the French judgment
was enforceable in the United States898
should have paid greater attention to
the various facts tying Yahoo! to France and rendering assertion of French
community dominion reasonable. On the other hand, the U.S. court may
have been correct in deciding that the judgment was unenforceable because
First Amendment norms, a core component of the American constitutional
order, would forbid U.S. enforcement. Such an enforceability question,
however, is not as easy as the district court assumed. Indeed, in a cosmo-
politan pluralist approach, the French court, by asserting jurisdiction and ar-
ticulating a norm against neo-Nazi hate speech, would force an American
court to grapple with the contested question of the degree to which hate
speech, particularly speech that could be deemed an incitement899
or a
threat,900
is necessarily protected by the First Amendment.901
A U.S. court
might also consider possible tensions between the First Amendment and
many countries' interpretations of international human rights norms regard-
ing hate speech.902
For example, a court's decision in country A might be roundly criticized by the executive or
legislature in that country. Such displeasure could range from public denouncement, to a de-
cision not to bring future legal actions based on the judgment, to an outright refusal to enforce
the judgment. In such cases of interbranch conflict, an enforcing court in country B might
consider these nonjudicial actions when assessing the authoritative force of the initial commu-
nity's assertion of jurisdiction and its resolution of the dispute.
898
See supra text accompanying note 104 (discussing the U.S. district court's decision
not to enforce the French judgment against Yahoo! on First Amendment grounds).
899
See, e.g., Berhanu v. Metzger, 850 P.2d 373, 373-76 (Or. 1993) (upholding a jury
finding that racist teachings of a white supremacist group, coupled with the paramilitary train-
ing of skinheads, was sufficient to impose vicarious liability on the group's leader in a civil
wrongful death action following a murder committed by members of the group).
900
See, e.g., Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of
Life Activists, 290 F.3d 1058, 1088 (9th Cir. 2002) (en banc) (plurality opinion) (ruling, over
the dissent of five judges, that actions of anti-abortion activist organizations in publicly dis-
closing in a suggestive website display the names and addresses of abortion providers consti-
tuted true "threats of force" and thus were not protected speech under the First Amendment).
901
See, e.g., KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGAUGE 249-
80 (1989) (arguing that certain threats and incitements should be deemed speech that does
something rather than says something and should therefore fall outside a principle of free
speech); MARI J. MATSUDA ET AL., WORDS THAT WOUND: CRITICAL RACE THEORY,
ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 35-38 (1993) (arguing that racist speech
should not be protected under the First Amendment).
902
See, e.g., COMM'N TO STUDY GLOBAL NETWORKS & LOCAL VALUES, NAT'L
506 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
Thus, by employing a cosmopolitan pluralist conception of jurisdiction
and judgment recognition, the U.S. court could first give some deference to
the French assertion of community dominion and take seriously the fact that
strict territoriality does not accurately capture the nature of community af-
filiation in today's world; and second consider the substantive norms articu-
lated by the French court and weigh them against competing normative sys-
tems. Such an approach would recognize that the assertion of jurisdiction
and the norms deriving therefrom are part of a fluid cosmopolitan system of
multiple attachments and multiple norms. Moreover, the alernative ap-
proach--the assignment of a single jurisdictional membership to Yahoo!
based on a formal territorial analysis--does not adequately capture the so-
cial meaning of jurisdiction and community definition.
Because the assertion of jurisdiction opens up space for articulating al-
ternative norms, a more fluid conception of jurisdictional rules might also
serve a democratizing function. For example, the Internet for many years
was largely an American creation, and its architecture (both technical and
legal) tended to embed American values such as free speech within it. Ya-
hoo! raised the possibility that other countries might begin to challenge
America's legal dominance by advancing alternative normative visions
about the shape of online regulation.903
If multiple communities are af-
fected 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. The
French jurisdictional assertion therefore creates an opportunity for ongoing
international debate about the appropriate rules for speech in online interac-
tion. This debate is important (and might have long-term consequences)
RESEARCH COUNCIL, GLOBAL NETWORKS AND LOCAL VALUES: A COMPARATIVE LOOK AT
GERMANY AND THE UNITED STATES 108-14 (2001) (comparing U.S. and German hate speech
laws); Kevin Boyle, Hate Speech: The United States Versus the Rest of the World?, 53 ME. L.
REV. 487, 493-97 (2001) (describing the tension between First Amendment and international
standards, particularly as embodied in the International Covenant on Civil and Political
Rights, Dec. 16, 1966, 999 U.N.T.S. 171, and the International Convention on the Elimination
of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195); Laura R. Palmer, A
Very Clear and Present Danger: Hate Speech, Media Reform, and Post-Conflict Democrati-
zation in Kosovo, 26 YALE J. INT'L L. 179, 182-214 (2001) (comparing various approaches to
hate speech in Germany, the United States, and postconflict transitional societies); Wendy
McAuliffe, Europe Hopes to Outlaw Hate Speech Online, CNET NEWS.COM (Nov. 12, 2001),
at http://news.com.com/2100-1023-275708.html (describing the Council of Europe's Parlia-
mentary Assembly's unanimous vote to draft a protocol defining and outlawing hate speech
on computer networks).
903
See Joel R. Reidenberg, Yahoo and Democracy on the Internet, 42 JURIMETRICS J.
261 (2002) (arguing that the French Yahoo! decision signals that the Internet regulatory
framework must recognize values adopted by different states and can no longer be dictated by
technical elites).
2002] GLOBALIZATION OF JURISDICTION 507
even if in this particular instance a U.S. court decides not to enforce the
French order.
The Canadian Human Rights Commission's recent decision ordering
American resident Ernst Zündel to remove anti-Semitic hate speech from
his California-based website provides a similar example of the way even
possibly unenforceable decisions may nevertheless be important.904
Indeed,
the Commission's order explicitly acknowledged the difficulty of enforce-
ment, but insisted that there was "a significant symbolic value in the public
denunciation" of Zündel's actions and a "potential educative and ultimately
larger preventative benefit [to be] achieved by open discussion of the prin-
ciples" enunciated in its decision.905
By refusing to dismiss the case on ju-
risdictional grounds, the Commission was able to articulate norms that
might have persuasive value in Canada and elsewhere over time. And if a
U.S. court subsequently were to refuse to enforce the order on First
Amendment grounds (as in Yahoo!),906
such a decision would likewise pro-
vide 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.
For this same reason, a cosmopolitan pluralist conception of jurisdiction
might prompt rethinking about how best to handle 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.907
In a cosmopolitan 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 devel-
opment because other jurisdictions would need to determine which of the
judgments to recognize.
One might think that foreign enforcement of judgments is more auto-
matic than I have posited because of treaties that, for example, require en-
forcement of foreign countries' judgments or (in the criminal context) re-
904
See Citron v. Zündel (Canadian Human Rights Trib. Jan. 18, 2002), http://www.chrt-
tcdp.gc.ca/decisions/docs/citron-e.htm (discussing the Canadian order that required Zündel to
remove hate speech from his website).
905
Id.
906
For discussion of a federal district court's order declaring the French judgment in
Yahoo unenforceable, partly because of First Amendment concerns, see supra text accompa-
nying note 305.
907
See Hague Conference on Private International Law, Summary of the Outcome of the
Discussion in Commission II of the First Part of the Diplomatic Conference, June 6-22, 2001,
at art. 21, http://www.hcch.net/e/workprog/jdgm.html (discussing the Convention's procedural
rules with regard to the enforcement of judgments for nation-states).
508 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
quire extradition of defendants in one country when wanted in another.
However, local public policy exceptions to the enforcement of foreign
judgments are relatively commonplace, especially when the foreign judg-
ment flies in the face of the enforcing state's regulatory regime.908
Even in
the arbitration context, the principal treaty on the enforcement of arbitral
awards also contains a public policy exception.909
Thus, although as a prac-
tical matter the question of enforcement often will be automatic, on the most
controversial questions the process of rhetorical persuasion I describe will
be applicable.
Conceiving of jurisdiction in terms of community membership and do-
minion would not only lead to more explicit discourse regarding subsequent
enforcement of judgments, but might change the outcome of the original
court's jurisdictional analysis as well. For example, in a recent case brought
in California, the plaintiffs alleged that they were subject to forced labor in
the construction of an oil pipeline in Myanmar and sued the company alleg-
edly responsible for the pipeline.910
The Ninth Circuit dismissed the case
for lack of jurisdiction because the defendant was a French corporation, de-
spite the fact that the corporation was directly involved in the operations and
decision making of a California-based subsidiary.911
Had the court focused
on community membership in a more comprehensive way, it might have
pierced the parent-subsidiary relationship to consider enterprise liability,
recognizing the importance of bringing the nominally French corporation
within the dominion of California, particularly since the French corporation
was conducting major business activities in California and 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
908
See, e.g., Bachchan v. India Abroad Publ'ns Inc., 585 N.Y.S.2d 661, 664-65 (N.Y.
Sup. Ct. 1992) (declining to enforce an English money judgment for libel against a newspaper
whose activities would have been protected by the First Amendment in the United States).
See generally GARY B. BORN & DAVID WESTIN, INTERNATIONAL CIVIL LITIGATION IN
UNITED STATES COURTS 35-42 (2d ed. 1996) (examining lawsuits involving foreign parties in
U.S. courts).
909
See Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
June 10, 1958, art. 5, § 2(b), 21 U.S.T. 2517, 2520, 330 U.N.T.S. 38, 42 (authorizing nonen-
forcement if enforcement would be contrary to the public policy of the enforcing state); id. §
1(b) (authorizing nonenforcement if "[t]he party against whom the award is invoked was not
given proper notice of the appointment of the arbitrator or of the arbitration proceedings or
was otherwise unable to present his case"); see also Iran Aircraft Indus. v. Avco Corp., 980
F.2d 141 (2d Cir. 1992) (invoking Article 5, Section 1(b) to deny enforcement of an arbitral
award made by the U.S.-Iran Claims Tribunal).
910
Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001).
911
Id. For a discussion of Unocal, focusing on the law of corporate groups, see Blum-
berg, supra note 406, at 498-99.
2002] GLOBALIZATION OF JURISDICTION 509
conveniens grounds, human rights claims brought by foreign nationals
against American corporations.912
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 the 1947 case of Gulf Oil Corp. v. Gilbert.913
The diffi-
culty with the Gilbert factors, however, is that they leave little, if any, room
for argument that American society and American courts have a social re-
sponsibility to provide an American hearing for alleged misconduct of U.S.-
based multinationals.914
In contrast, a conception of jurisdiction based on
community membership and responsibility would offer more space to con-
sider such an argument.
A cosmopolitan pluralist approach to jurisdiction might encourage fo-
rum-shopping if plaintiffs have more jurisdictions available to hear their
claims. As previously discussed, however, under the approach I suggest as-
sertions of jurisdiction will not necessarily be more broad than under current
jurisdictional rules,915
particularly given recent trends toward an expansive,
effects-based jurisdictional scheme.916
Indeed, a court focusing on the defi-
912
See Blumberg, supra note 406, at 502 n.35 (collecting cases). For discussions of
corporate responsibility to obey human rights norms, see generally Avery, supra note 729;
Jordan J. Paust, Human Rights Responsibilities of Private Corporations, 35 VAND. J.
TRANSNAT'L L. 801 (2002); Steven R. Ratner, Corporations and Human Rights: A Theory of
Legal Responsibility, 111 YALE L.J. 443 (2001).
913
330 U.S. 501 (1947). Gilbert's 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 508-09. 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.
914
Cf. Blumberg, supra note 406, at 509 ("International human rights cases are tort cases
arising in a foreign jurisdiction, and the private interest factors exert a near irresistable pres-
sure for foreign trial where the events took place.").
915
See supra text accompanying notes 803­04 (discussing possible limitations on juris-
dictional assertions under a cosmopolitan pluralist approach).
916
See supra text accompanying notes 432-43 (identifying cases that permit effects-
based jurisdiction and discussing application of the effects test).
510 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
nition 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. And because a
cosmopolitan pluralist vision requires that the plaintiff establish a connec-
tion with the community where the court sits,917
the ability to pick a forum
arbitrarily is limited. 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 [forum-shop] presupposes a `correct' or `fair' baseline defining how often
the plaintiff's choice ought to prevail."918
After all, if it is legitimate to have
different jurisdictional entities applying distinct bodies of law, why should
the law not vary depending on where a suit is brought, and why is it neces-
sarily unfair to give plaintiffs this choice? Brainerd Currie, arguably the
most influential American choice-of-law theorist, downplayed the impor-
tance of forum-shopping, particularly if preventing it requires sacrificing
substantive policies.919
And even if one believes forum-shopping is a prob-
lem, it is difficult to evaluate this concern without empirical data. For ex-
ample, 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 nonexistence) 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.920
917
See supra text accompanying notes 797­98 (discussing the need to focus on the
plaintiff's connections to the forum).
918
Larry Kramer, Rethinking Choice of Law, 90 COLUM. L. REV. 277, 313 n.117 (1990).
919
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) (suggest-
ing 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 con-
demnation 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,
such as the need to minimize forum-shopping and enhance uniformity and predictability. See,
e.g., Alfred Hill, Governmental Interest and the Conflict of Laws--A Reply to Professor Cur-
rie, 27 U. CHI. L. REV. 463, 502-07 (1960) (criticizing Currie's approach on the grounds that
it multiplies the number of potential conflict situations and does not provide an adequate
framework for addressing such conflicts); Arthur Taylor von Mehren, Recent Trends in
Choice-of-Law Methodology, 60 CORNELL L. REV. 927, 938 (1975) (arguing that Currie's ap-
proach to multistate situations is "simplistic").
920
Larry Kramer has argued that assertions of unfairness regarding plaintiffs' power to
shop for a forum "rest[] on an unarticulated--and unexplained--assumption about what each
2002] GLOBALIZATION OF JURISDICTION 511
Finally, the mere assertion of jurisdiction will not lead to a nightmarish
world of multiple liability around the globe because enforcement will re-
main a contested issue. Just because a tribunal asserts jurisdiction does not
mean that its judgment will be recognized and enforced elsewhere. But
whereas Goldsmith assumes that a judgment issued by one sovereign will
necessarily be unenforceable elsewhere, a cosmopolitan pluralist approach
requires that the enforcing court scrutinize the original judgment both for its
assertion of community dominion and for its substantive norms. Therefore,
if the decision persuades other communities, it will be entitled to recogni-
tion. And even if it fails to persuade in the particular case, a cosmopolitan
pluralist conception explicitly contemplates the possibility that the norm,
through its rhetorical force, may subsequently achieve wider acceptance and
enforcement. To use the Yahoo! example again, the French court must per-
suade the American court both that the affiliations between Yahoo! and
France and the needs of French citizens justify the assertion of French
community dominion over Yahoo!, and that, in this instance, the norms em-
bodied in the First Amendment must yield to concerns about hate speech
and neo-Nazi propaganda or memorabilia. What neither court could do in a
cosmopolitan pluralist understanding, however, is simply throw out the case
for lack of jurisdiction. Eschewing the formalistic application of mechani-
cal jurisdictional rules ensures that substantive discussion of both commu-
nity definition and evolving substantive norms will always take place.921
3. International Human Rights
Turning to international law, we can see the cosmopolitan pluralist ap-
proach similarly operating to encourage development of customary norms
that transcend nation-state boundaries. Replacing the rigidly statist view of
party is entitled to expect in a `fair' system." Kramer, supra note 918, at 313-14 n.117. He
"share[s] the intuition that it is `unfair' if plaintiffs can always choose among the potentially
applicable laws," but is "loath to rely on an intuition that [he] cannot satisfactorily defend
simply because it is widely shared." Id. at 314 n.117. Of course, to the extent forum-
shopping creates uncertainty, parties may attempt to contract around the problem through fo-
rum-selection and choice-of-law clauses (at least in contractually based cases), or may con-
tractually choose nonlitigation alternatives. These "solutions" depend in part, however, on the
law applied to the contractual provisions. See supra note 55 and accompanying text (recog-
nizing that contractual agreements might not be enforceable due to the invocation of public
policies concerning parties' unequal bargaining power).
921
Courts are not the only forum for such debate, of course, but adjudicatory processes
form a useful site for discourse because they are premised on the idea of multivocal conversa-
tion and the evolution of norms. See Berman, Transformative Potential of Law, supra note
503, at 171-73 (arguing that courts (and legal discourse more generally) provide a forum for
dialogue among multiple narratives). A detailed review of the longstanding debates about the
institutional benefits and limitations of courts, however, is beyond the scope of this Article.
512 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
international law, a cosmopolitan pluralist approach recognizes multiple in-
terconnections among shifting communities acting transnationally.
The Pinochet case provides a useful example of the way in which a
cosmopolitan pluralist model can operate. A Spanish judge asserted juris-
diction over the former Chilean dictator based on Spain's ties to complain-
ants affected by Pinochet's alleged human rights abuses and on a general
principle of accountability for gross violations of human rights.922
This as-
sertion of jurisdiction, however--like the Canadian Human Rights Commis-
sion's decision about Ernst Zündel923
--carried with it no enforcement
power unless the Spanish judge could rhetorically persuade other countries
(in this case Great Britain, where Pinochet was undergoing medical treat-
ment) to recognize the jurisdictional assertion and extradite Pinochet.924
Al-
though Pinochet ultimately was not extradited and was instead returned to
Chile, Spain's assertion of jurisdiction (and the formal recognition given to
the jurisdictional assertion by the British House of Lords) has created an
important shift in international human rights norms, reinforcing the idea that
even heads of state can be held accountable for acts perpetrated in the
past.925
Moreover, the assertion of jurisdiction over Pinochet strengthened the
hands of human rights advocates within Chile itself and provided the impe-
tus for a movement to strip Pinochet of his immunity there and begin prose-
cution of him locally.926
Although that effort may be stymied because of
Pinochet's failing health,927
the case against Pinochet appears to have stimu-
lated a new round of human rights enforcement actions in South America.
For example, in Argentina, one judge has recently authorized the arrest of
former military dictator Leopoldo Fortunato Galtieri after ruling that two
922
See supra text accompanying notes 186­88 (discussing the assertion of jurisdiction
over Pinochet).
923
See supra notes 904-05 and accompanying text (describing the Commission's refusal
to dismiss the case on jurisdictional grounds).
924
Although the extradition request was made pursuant to an international treaty, see
supra note 186 (noting that the British House of Lords found jurisdiction based on the Interna-
tional Convention Against Torture), extradition agreements generally contain public policy
exceptions that often come into play in controversial cases such as this one. Thus, the extradi-
tion in the Pinochet case was certainly not automatic, and rhetorical persuasion was necessary.
925
See supra text accompanying notes 185-209 (describing legal developments that have
eroded the assumption that heads of state are immune from suit).
926
See Pinochet Said Serene About Ruling Stripping Him of Immunity, DEUTSCHE
PRESSE-AGENTUR, June 13, 2002, LEXIS, DPA File [hereinafter Pinochet Serene] (reporting
on the Chilean Supreme Court's ruling that Pinochet should be stripped of lifetime immunity).
927
See Heather Walsh, Chilean Court Upholds Ruling that Pinochet Unfit to Stand
Trial, BLOOMBERG NEWS, July 1, 2002, LEXIS, Allbbn File ("Chile's Supreme Court up-
held a ruling that blocked former dictator Augusto Pinochet from being tried on charges he
covered up army killings, saying he was mentally unfit to face prosecution.").
2002] GLOBALIZATION OF JURISDICTION 513
amnesty laws protecting former military officers from prosecution were un-
constitutional.928
Meanwhile, another Argentinian judge has finally con-
vinced Chilean lower courts to allow her to interrogate five former members
of Pinochet's secret police in an investigation of the murder of a former
Chilean general and his wife in Argentina in 1974.929
These activities demonstrate the rhetorical power of a jurisdictional as-
sertion even when literal enforcement power is lacking. Indeed, a cosmo-
politan pluralist approach to jurisdiction allows us to divorce the assertion
of jurisdiction and the subsequent articulation of norms from the pure power
of the sovereign state. Because the international system is fluid and de-
pendent on changes in custom, which in turn harden into law over time, it is
essential to maintain a jurisdictional model that can account for such alter-
native repositories of power and influence.
A corollary to the assertion of jurisdiction is the assignment of jurisdic-
tional membership. While there have always been confusions about how to
classify and regulate people who feel loyalties to multiple communities,
such questions are even more urgent given the globalization of communica-
tion and transportation, as well as growing economic integration across ter-
ritorial borders. These phenomena make it clearer than ever that law at-
taches labels of citizenship and other types of community membership
without sufficient consideration for the ways in which people actually ex-
perience community.
Nowhere are these concerns more pressing today than in the assertion
of jurisdiction and assignment of community membership with regard to
those accused of aiding Al Qaeda terrorists. Indeed, much of the debate
about the appropriate treatment of accused terrorists springs from the fact
that the U.S. government has accorded itself unilateral authority to assign
community membership to detainees and then to act based on the legal con-
sequences of that membership. For example, Yasser Hamdi is a U.S. citi-
zen930
who contends that he has been held since the fall of 2001 in military
detention without any formal charges and without being provided any of the
rights of citizens.931
To date he has not even been permitted to meet with an
928
See Galtieri Arrested in Argentina on Human Rights Abuse Charges, DEUTSCHE
PRESSE-AGENTUR, July 11, 2002, LEXIS, DPA File (reporting Galtieri's arrest).
929
See Pinochet Serene, supra note 926 (noting that approval of Judge Servini's interro-
gation of former secret police is pending in an appeals court).
930
See Hamdi v. Rumsfeld, 296 F.3d 278, 280 (4th Cir. 2002) (indicating that Hamdi
was born in Louisiana).
931
See id. at 283 (recounting Hamdi's argument that judicial review is necessary to de-
termine whether he "could be detained indefinitely without charges or counsel on the govern-
ment's say-so").
514 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
attorney.932
Civil libertarians and others urge that although Hamdi is of
Saudi Arabian ethnicity, he is an American citizen under the Fourteenth
Amendment because he was born within U.S. territorial boundaries.933
Therefore, they argue, he is entitled, as a citizen (and thus, a member of the
American community), to the full panoply of constitutional rights accorded
other criminal suspects.934
In response, the government essentially argues
that Hamdi has given up his American citizenship and therefore is not enti-
tled to any of the rights American citizens enjoy.935
In support of this sort of detention power (as well as the power to try
accused Al Qaeda operatives before military commissions without any right
of appeal to an independent judicial body), government officials cite the
U.S. Supreme Court's approval of a military commission's power to try a
group of submariners who had fought for Germany during World War II.936
Although one of those defendants was an American citizen, the Court per-
mitted the use of a military commission because "[c]itizens who associate
themselves with the military arm of the enemy government, and with its aid,
guidance and direction"937
attempt to attack the United States are no longer
entitled to the civil liberties that community membership in the United
States entails.938
The problem, of course, is determining at what point (and
based on what evidence) it can be said that someone like Hamdi has "asso-
ciated" himself with Al Qaeda or the Taliban such that his citizenship rights
can be stripped away.
A cosmopolitan pluralist model of jurisdictional affiliation would rec-
932
See id. at 284 (reversing and remanding the district court's order permitting Hamdi
access to counsel).
933
See U.S. CONST. amend. XIV, § 1 ("All persons born or naturalized in the United
States . . . are citizens of the United States . . . .").
934
See, e.g., Editorial, Justice Detained, N.Y. TIMES, June 10, 2002, at A24 ("The Bush
administration's post-Sept. 11 assault on civil liberties reached a new low recently when the
Justice Department argued in court that an American-born detainee, who may be a United
States citizen, should not be allowed to talk to a lawyer.").
935
See Katharine Q. Seelye, Lawyer Asks for Access to Prisoner Born in U.S., N.Y.
TIMES, June 21, 2002, at A16 ("In a broad assertion of presidential authority that could ulti-
mately be tested in the Supreme Court, the government said in court papers on Wednesday
that anyone it designated an `enemy combatant' did not have to be provided the legal protec-
tions accorded most American citizens.").
936
See Ex parte Quirin, 317 U.S. 1, 45 (1942) (concluding that "the Fifth and Sixth
Amendments did not restrict whatever authority was conferred by the Constitution to try of-
fenses against the law of war by military commission" and that such offenders "not required
to be tried by jury at common law, were lawfully placed on trial by the Commission without a
jury").
937
Id. at 37-38.
938
See, e.g., id. at 44 (stating that trying "citizen offenders against the law of war" with-
out a jury is not repugnant to Article III, Section 2 of the Constitution).
2002] GLOBALIZATION OF JURISDICTION 515
ognize that all people have multiple attachments and that sympathy (or even
some form of association) with groups that the U.S. government opposes
cannot be enough to strip an American of his community membership and
the rights that accompany such membership. Thus, although some news ac-
counts about Hamdi refer to him as an "American-born Saudi,"939
a cosmo-
politan pluralist approach recognizes that community membership is a fluid
process and that the community designations surrounding the hyphen can
just as easily be reversed, rendering Hamdi a Saudi Arabian-American.
Moreover, in light of the Fourteenth Amendment's citizenship command,
this conception of multiple community ties (United States by birth, Saudi
Arabia by ethnicity) is both completely appropriate and constitutionally em-
bedded.
In addition, by de-emphasizing the importance of territorial borders, a
cosmopolitan pluralist conception would not permit the U.S. military to
evade constitutional scrutiny merely by locating a detention facility offshore
in Guantanamo Bay.940
Just as a community-based approach to offshore
website regulation or offshore tax enforcement would look beyond formal
territorial boundaries and instead consider the substantive ties to a commu-
nity, so too an offshore detention center controlled and operated by the U.S.
government is properly considered an arm of the U.S. community and
should be subject to the community's norms (including the U.S. Constitu-
tion).941
While noncitizen detainees who have never set foot in the United
States normally might not have sufficient community ties to invoke the aid
939
See, e.g., Saudi Kept from Lawyers, N.Y. TIMES, June 14, 2002, at A26 ("A federal
appeals court in Richmond has again blocked a meeting between an American-born Saudi
captured in Afghanistan and lawyers seeking to represent him.").
940
Cf. Rasul v. Bush, 215 F. Supp. 2d 55, 72 (D.D.C. 2002) (ruling that federal courts
have no jurisdiction over claims based on military detentions in Guantanamo Bay).
941
An important statement of this principle can be found in United States v. Tiede, 86
F.R.D. 227 (U.S. Ct. Berlin 1979). In that case, a foreign national accused of hijacking a Pol-
ish aircraft abroad was tried under German substantive law in Berlin in a court created by the
United States. The U.S. court held that, despite the use of German substantive law, the for-
eign national was entitled to jury trial as a matter of U.S. constitutional right because the U.S.
court must act in accordance with the Constitution even when situated beyond U.S. territorial
borders. Id. at 247-51. According to the court, "[i]t is a first principle of American life--not
only life at home but life abroad--that everything American public officials do is governed
by, measured against, and must be authorized by the United States Constitution." Id. at 244;
see also DKT Mem'l Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275, 307-08 (D.C. Cir.
1989) (Ginsburg, R.B., J., dissenting in part) ("[J]ust as our flag carries its message . . . both at
home and abroad, so does our Constitution and the values it expresses." (alteration in original)
(citation and internal quotation marks omitted)); cf. United States v. Balsys, 524 U.S. 666,
701-02 (1998) (Ginsburg, J., dissenting) (expressing the view that "the Fifth Amendment
privilege against self-incrimination prescribes a rule of conduct generally to be followed by
our Nation's officialdom" and "should command the respect of United States interrogators,
whether the prosecution reasonably feared by the examinee is domestic or foreign").
516 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
of U.S. courts, the fact that the U.S. government has confined them in mili-
tary detention camps should, under a community-based understanding of
jurisdiction, bring even these noncitizens within federal court jurisdiction.
Kenneth Anderson has recently used a community-based approach to
argue that the detainees should be classified not as "criminals," but as
"enemies" who should be deemed external to the U.S. community and
therefore external to the protections of U.S. law.942
Accordingly, Anderson
argues, military commissions are the appropriate forum for bringing such
detainees to justice. Aside from the many moral or policy reasons for re-
jecting Anderson's argument,943
a cosmopolitan pluralist approach to juris-
diction, even assuming the detainees are deemed external to the U.S. com-
munity, would still accord the detainees membership in some other matrix
of community affiliations, including the community of international justice.
Therefore, the appropriate forum for trying such external enemies would be
an international tribunal, not a U.S. military one. In addition, permitting the
executive branch unilaterally to determine who is within the domestic com-
munity and who is an enemy serves to deprive even community members of
their membership rights because they will always be at risk that their com-
munity membership may be extinguished at the whim of the President, as
the Hamdi case illustrates. As discussed above, in a non-territorial approach
to legal norms, U.S. constitutional requirements follow U.S. governmental
actors wherever they go; thus, a military commission proceeding, even if
held outside U.S. territorial borders, must be subject to constitutional pro-
tections and nonmilitary judicial oversight.
Finally, though one can see the President's proposed use of military
commissions944
as an example of jurisdiction creation of the sort contem-
plated in a cosmopolitan pluralist framework, there is, as always, the ques-
tion of recognition. The long-term willingness of others to accept such a
tribunal depends on its ability to convince others of the legitimacy of its
norms and procedures. Indeed, for better or worse, we see in the military
942
See Kenneth Anderson, What to Do with Bin Laden and Al Qaeda Terrorists?: A
Qualified Defense of Military Commissions and United States Policy on Detainees at Guan-
tanamo Bay Naval Base, 25 HARV. J.L. & PUB. POL'Y 591, 609-11 (2002) (arguing that U.S.
district courts, which treat crime as "a deviation from domestic legal order," are ill-suited to
handle those who are not criminals within this order, but enemies of it).
943
See, e.g., Anne-Marie Slaughter, Beware the Trumpets of War: A Response to Ken-
neth Anderson, 25 HARV. J.L. & PUB. POL'Y 965, 966 (2002) (arguing that "Anderson would
turn back the clock on one of the most important legal developments over the past half-
century--the individualization of international law").
944
See Military Order of Nov. 13, 2001, 66 Fed. Reg. 57,833, § 1(e)-(f) (Nov. 16, 2001)
(providing for trials before military tribunals without many procedural protections guaranteed
by the U.S. Constitution or international law).
2002] GLOBALIZATION OF JURISDICTION 517
commissions another example of the way in which assertions of jurisdiction
open a space for debate. In this case, the creation of military jurisdiction
has become a flashpoint of dispute.945
The tribunals face serious attacks on
their legitimacy under both domestic constitutional946
and international947
law. In addition, it remains unclear whether other countries will be willing
to extradite suspects given the limited due process protections of the tribu-
nal and the possibility of an eventual death sentence.948
Moreover, we are
likely to see communities--including nation-states, religious organizations,
transnational NGOs, and others--disagree with the proposed commissions
and use various forms of diplomatic pressure, as well as transnational lobby-
ing and activism efforts, to resist this jurisdictional assertion. Indeed, the
administration has already qualified the original order authorizing the com-
missions,949
and these qualifications appear aimed at responding to some of
the criticisms already leveled. Ultimately, even a country as militarily pow-
945
Compare Dickinson, supra note 521 (arguing that military commissions violate U.S.
and international law, whereas multilateral legal process advances U.S. strategic interests, and
suggesting various options for introducing an international component into the accountability
process), Harold Hongju Koh, The Case Against Military Commissions, 96 AM. J. INT'L L.
337 (2002) (arguing against the use of military commissions and advocating U.S. domestic
criminal trials for terrorist acts committed on U.S. soil), and Slaughter, supra note 943 (advo-
cating the use of international tribunals), with Anderson, supra note 942 (defending military
commissions' authority to try detainees at Guantanamo Bay Naval Base), Curtis A. Bradley &
Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 GREEN BAG 2D
249 (2002) (defending the constitutionality of the President's authority to establish military
tribunals with jurisdiction over terrorists involved in the September 11 attacks), and Ruth
Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AM. J. INT'L L. 328 (2002)
(arguing that the jurisdiction of military commissions over Al Qaeda terrorists is valid).
946
See, e.g., Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying
the Military Tribunals, 111 YALE L.J. 1259 (2002) (arguing that the President has no constitu-
tional authority to deny constitutional rights to persons facing military tribunals when no im-
mediate threats to the nation or the Constitution are present).
947
See, e.g., Koh, supra note 945, at 338-39 (indicating that the tribunals violate the In-
ternational Covenant on Civil and Political Rights, supra note 902, and the Third Geneva
Convention, Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135). Although the regulations for the proposed commis-
sions promulgated by the Department of Defense, Military Commission Order No. 1 (Mar. 21,
2002) [hereinafter Military Commission Order],
http://www.defenselink.mil/news/mar2002/d2002o32lord.pdf, address some of the objections
under U.S. constitutional and international law, on further examination, the "rights" conveyed
by the DOD regulations are not enforceable rights at all, see, e.g., Dickinson, supra note 521,
at 1416-18 (describing the inadequacy of the regulations).
948
Dickinson, supra note 521, at 1450-52.
949
See Anderson, supra note 942, at 592-93 ("[T]he Bush Administration has moved to
mollify opponents by promising additional regulations outlining the actual procedures for the
military commissions (to be drafted by the General Counsel of the Department of Defense).");
see also Military Commission Order, supra note 947 (prescribing procedures for trials before
military commissions).
518 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
erful as the United States may find itself stymied by coordinated resistance
in the development of norms (as the United States encountered when it at-
tempted to insist on permanent immunity for U.S. peacekeepers before the
new International Criminal Court).950
The point is that the mere assertion of
jurisdiction does not itself make the assertion legitimate--the body asserting
jurisdiction always must convince others.
C. The Convergence of Cyberspace Law and International Law in the
Development of Transnational Common Law Norms
As indicated by the conceptual tie between offshore websites and off-
shore military commissions, a cosmopolitan pluralist conception of jurisdic-
tion allows us to see ways in which legal issues in cyberspace and interna-
tional law are converging. Since 1995, cyberspace law theorists have
considered the possibility that the rise of online interaction could pave the
way for a revival of lex mercatoria, wherein thousands of individual transac-
tions slowly harden into a form of customary law that eventually is adopted
as state sovereign law. Perhaps the most detailed articulation of this ap-
proach is Graeme Dinwoodie's application of the substantive law method to
questions of choice of law.951
Dinwoodie explicitly argues for lex mercato-
ria,952
suggesting that the judicial role in multistate cases should permit
common law development just as in domestic cases.953
By definition, a dis-
pute involving multiple communities means that multiple norms will be
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.
Ironically, this "bottom-up" conception of law formation, embodied in
lex mercatoria, was the pre-Westphalian international law. Although a more
statist conception has reigned in the centuries since Westphalia, interna-
tional law is increasingly adopting a weakened conception of state preroga-
tives. As discussed previously, universal and transnational jurisdiction,
950
See, e.g., Serge Schmemann, U.S. Peacekeepers Given Year's Immunity from New
Court, N.Y. TIMES, July 13, 2002, at A3 ("The dispute evolved, however, into the first public
test of wills between the administration of a lone superpower generally suspicious of multilat-
eral institutions and a galaxy of smaller nations increasingly looking to such organizations.");
see also id. (quoting a European diplomatic saying that "[t]he United States learned it can't
shout loud and make everyone move").
951
See supra Part II.G (referring to the development of a body of transnational law to
resolve disputes according to customary norms rather than positive law).
952
See supra note 359 (describing lex mercatoria as a hybrid practice governing transna-
tional merchants).
953
See Dinwoodie, supra note 323, at 548 (arguing that a middle ground between the
laws of different nations should be sought through common law).
2002] GLOBALIZATION OF JURISDICTION 519
though controversial, have been invoked in the area of human rights law.954
In addition, many individual countries have shown their willingness to re-
linquish aspects of their sovereign adjudicatory authority to transnational or
international bodies, whether it be an international court, such as the Euro-
pean Court of Justice, or an administrative body, such as the WTO. Mean-
while, private parties engaged in transnational business activity often es-
chew the law of either party's nation-state and instead opt for the norms of
the international business community embodied in the UN Convention on
Contracts for the International Sale of Goods.955
Although territoriality and
nation-state sovereignty are not likely to disappear in the foreseeable future,
the traditional image of the state may be 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. "[G]overnance will require extensive networked coopera-
tion, and hierarchical rules are likely to become less effective."956
In this
altered framework, the old distinction between public and private interna-
tional law is rapidly eroding.
Thus, as cyberlaw scholars increasingly recognize the regulatory role of
sovereign states, and international law increasingly recognizes the impor-
tance of non-state entities' forging customary norms, cyberlaw's traditional
focus on bottom-up norm creation and international law's traditional focus
on top-down norms articulated by sovereign states are both weakening.
Moreover, it seems to me that the two fields are converging in the domain
of jurisdiction. And this convergence is driven by the development of a
transnational common law system of lawmaking based on cosmopolitan
pluralist principles.
Such a transnational common law could take a number of different
forms. I have already noted Graeme Dinwoodie's proposal that domestic
courts explicitly look to international norms in interpreting the law govern-
ing multistate disputes.957
Anne-Marie Slaughter has observed similar phe-
954
See supra Part I.I (discussing expansive assertions of jurisdiction in human rights
litigation).
955
Apr. 11, 1980, 1489 U.N.T.S. 3.
956
Robert O. Keohane & Joseph S. Nye Jr., Introduction, in GOVERNANCE IN A
GLOBALIZING WORLD, supra note 704, at 1, 19.
957
Supra Part II.G. Dinwoodie's application of the substantive law method, like a cos-
mopolitan pluralist conception of jurisdiction, also rests on the idea of multiple overlapping
spheres of prescriptive authority. See Dinwoodie, supra note 323, at 551 n.252 (claiming that
no single country's laws have exclusive application in international contexts where multiple
countries' laws speak to a substantive legal issue).
520 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
nomena occurring somewhat less explicitly in the development of what she
calls "judicial globalization."958
These transnational court interactions in-
clude the emergence of "judicial comity" in transnational litigation, nascent
efforts at constitutional cross-fertilization, and increasing face-to-face meet-
ings among judges around the world.959
Although comity has existed as an international law concept for a long
time, judicial comity reflects deference not simply to foreign law or foreign
national interests, but to foreign courts as well, accompanied by a recogni-
tion that foreign courts are "co-equals in the global task of judging."960
We
can see the roots of this type of judicial comity in the United States as far
back as Justice Blackmun's separate opinion in the 1987 case Société Na-
tionale Industrielle Aérospatiale v. United States District Court.961
In that
opinion, Justice Blackmun articulated a strong form of comity "under which
judicial decisions reflect the systemic value of reciprocal tolerance and
goodwill."962
In this vision, judges owe their allegiance to an international
system of norms, not simply to their own domestic law.963
And when there
is a conflict among multiple norms, "a court should seek a reasonable ac-
commodation that reconciles the central concerns of both sets of laws."964
Likewise, in a more recent case, the Second Circuit ruled that a U.S. discov-
ery statute "contemplates international cooperation, and such cooperation
presupposes an on-going dialogue between [sic] the adjudicative bodies of
the world community."965
This statement is distinctive both because its fo-
cus on "adjudicative bodies of the world community" seems to transcend
individual territorial courts and because it emphasizes dialogue among
courts rather than mere deference. Thus, we see a move "from passive ac-
958
See Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. 1103, 1104
(2000) (describing a "diverse and messy process of judicial interactions" involving multiple
nations).
959
See id. at 1112-23 (describing "horizontal" relations among national courts as exam-
ples of judicial globalization).
960
Id. at 1112-13.
961
482 U.S. 522, 547 (1987).
962
Id. at 555 (Blackmun, J., concurring in part and dissenting in part).
963
As then-Chief Judge Breyer has written, the appropriate inquiry for judges is how to
"help the world's legal systems work together, in harmony, rather than at cross purposes."
Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 950 (1st Cir. 1991).
964
Société Nationale Industrielle Aérospatiale, 482 U.S. at 555; see also Dinwoodie,
supra note 323, at 551 n.252 ("[C]hoice of law methods fail to recognize . . . that the limits of
prescriptive jurisdiction should be set by a claim to have some but not exclusive application to
a set of facts. The substantive law method, by giving prescriptive effect to both laws, permits
this normative limitation to be recognized." (parentheses omitted)).
965
Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1101 (2d Cir. 1995).
2002] GLOBALIZATION OF JURISDICTION 521
ceptance to active interaction, from negative comity to positive comity."966
Moreover, there is at least some evidence that the idea of such dialogue is
not simply a rhetorical flourish, but a practical reality. For example, in
bankruptcy law, judges increasingly communicate directly with each other
to resolve transnational insolvency issues, even in the absence of interna-
tional treaties or guidelines.967
Employing such judicial comity, either or
both courts in Yahoo! might have sought to construct a rule that attempted
to balance free speech concerns and emerging international human rights
norms. Such a rule then might have helped frame future judicial, legisla-
tive, and non-governmental regulatory activities on similar issues around the
world.968
Legal cross-fertilization also is not a new phenomenon (particularly be-
tween imperial powers and their colonies),969
but in the past decade we have
seen an increase in the willingness of courts (especially those outside the
United States) to use foreign materials in interpreting constitutional norms.
For example, as one British scholar has noted, "[s]everal senior members of
966
Slaughter, supra note 958, at 1114.
967
For example, in simultaneous insolvency proceedings involving Maxwell Communi-
cation Corporation, judges in both the United States and Great Britain appointed administra-
tors who developed a set of joint procedures, which were then memorialized in a "Protocol"
approved by both courts. See Maxwell Communication Corp. v. Barclays Bank, 170 B.R.
800, 802 (Bankr. S.D.N.Y. 1994) ("The joint administrators in England and the examiner in
New York, subject to the jurisdiction of both courts, have carried out the administration . . . in
unprecedented cooperation with each other."); see also Lore Unt, International Relations and
International Insolvency Cooperation: Liberalism, Institutionalism, and Transnational Legal
Dialogue, 28 LAW & POL'Y INT'L BUS. 1037, 1073-84 (1997) (describing the communica-
tions between U.S. and British courts during Maxwell Communication). See generally Jay
Lawrence Westbrook, Theory and Pragmatism in Global Insolvencies: Choice of Law and
Choice of Forum, 65 AM. BANKR. L.J. 457, 461 (1991) (claiming that "nearly unanimous
agreement" exists with regard to resolving multinational financial disputes in a cooperative,
central forum). Of course, transjudicial relations will not always be so solicitous. See, e.g.,
Slaughter, supra note 958, at 1114-15 (providing examples of conflicts between judges from
different jurisdictions). Nevertheless, even if judges spar over governing procedures and
norms, the resulting judicial dialogue creates a useful forum for developing transnational
common law over time.
968
Because state-sanctioned courts are, by definition, creatures of their own nation-state,
one might think that any application of external norms is illegitimate. However, if (as in a
contractarian model) courts derive their legitimacy ultimately from the people, it is important
to recognize that "the people" are cosmopolitan citizens with multiple overlapping affiliations,
many of which extend beyond the nation-state. In addition, at least in the United States, inter-
national law is the foundation of the American common law. See, e.g., The Paquete Habana,
175 U.S. 677, 700 (1900) ("International law is part of our law, and . . . resort must be had to
the customs and usages of civilized nations . . . .").
969
See Anthony Lester, The Overseas Trade in the American Bill of Rights, 88 COLUM.
L. REV. 537, 537-41 (1988) (describing the way in which the legal ideas expounded in the
U.S. Constitution influenced the framing of the French Declaration of the Rights of Man and
of the Citizen, ultimately spreading to other continents through imperial rule).
522 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
the British judiciary have recently suggested that they are . . . increasingly
prepared to accord persuasive authority to the constitutional values of other
democratic nations when dealing with ambiguous statutory or common law
provisions which impact upon civil liberties issues."970
Even some of the
current U.S. Supreme Court Justices have stated their willingness to con-
sider rulings from abroad as persuasive authority.971
Indeed, the recent case
of Atkins v. Virginia, in which the Court declared the execution of mentally
retarded people to be unconstitutional,972
provides an illustration of the way
in which transnational norms can develop and then harden into state law. In
1994, Justice Blackmun famously dissented from the denial of certiorari in a
capital case, flatly declaring that the "death penalty experiment has failed"
and proclaiming that he would no longer "tinker with the machinery of
death."973
Although no other Justice joined Blackmun's opinion, the lan-
guage of Blackmun's dissent was subsequently used as persuasive authority
by the South African Constitutional Court in its decision barring capital
punishment.974
In turn, the U.S. Supreme Court's Atkins decision relied in
part upon a growing international consensus against the death penalty, a
consensus that included the South African Constitutional Court decision.975
970
Ian Loveland, The Criminalization of Racist Violence?, in A SPECIAL
RELATIONSHIP? AMERICAN INFLUENCES ON PUBLIC LAW IN THE UK 253, 275 (Ian Loveland
ed., 1995).
971
See, e.g., Sandra Day O'Connor, Broadening Our Horizons: Why American Lawyers
Must Learn About Foreign Law, FED. LAW., Sept. 1998, at 20, 20 ("I know from my experi-
ence at the Supreme Court that we often have a lot to learn from other jurisdictions."); Eliza-
beth Greathouse, Justices See Joint Issues with the EU, WASH. POST, July 9, 1998, at A24
(quoting Justice O'Connor as expressing her willingness to consult the decisions of the Euro-
pean Court of Justice "and perhaps use them and cite them in future decisions"); id. (quoting
Justice Breyer's statement that "[l]awyers in America may cite an EU ruling to our court to
further a point and this increases the cross-fertilization of U.S.-EU legal ideas"). Among
lower court judges, Judge Calabresi has perhaps led the way toward embracing foreign author-
ity, observing that the United States no longer holds a "monopoly on constitutional judicial
review" and arguing that "[w]ise parents do not hesitate to learn from their children." United
States v. Then, 56 F.3d 464, 469 (2d Cir. 1995).
972
122 S. Ct. 2242, 2252 (2002).
973
Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting).
974
State v. Makwanyane, 1995 (3) SALR 391, 422 (CC) (referring to "the difficulties
experienced in the United States in the designing of a system [of capital punishment] that
avoided arbitrariness and delays" and citing Callins); see also id. at 456 (Ackermann, J.) (ac-
cepting and endorsing the views of Justice Blackmun); id. at 471 (Kentridge, Acting J.) (citing
Justice Blackmun's dissent in Callins as authority); id. at 491 (Mahomed, J.) (agreeing with
Justice Blackmun that arbitrariness is "inherent in the process").
975
See Atkins, 122 S. Ct. at 2249 n.21 ("Moreover, within the world community, the im-
position of the death penalty for crimes committed by mentally retarded offenders is over-
whelmingly disapproved." (citing Brief of Amicus Curiae European Union at 4, McCarver v.
North Carolina, 533 U.S. 975 (2001) (No. 00-8727) (acknowledging the South African Con-
stitutional Court ruling), 2001 WL 648609, at *8 n.9)).
2002] GLOBALIZATION OF JURISDICTION 523
This increasing willingness to consider transnational norms may stem in
part from the increase in face-to-face interaction among judges from around
the world. Foundation and government funding for a wide variety of "rule
of law" programs that include judicial seminars, training programs, and
educational materials have provided fora for interaction.976
In addition,
judges themselves have organized meetings with their counterparts around
the world. For example, in recent years several delegations of Supreme
Court Justices have met with top jurists in France, Germany, England, and
India.977
In 1998, Justices O'Connor, Kennedy, Ginsburg, and Breyer trav-
eled to Brussels to meet with judges from the European Court of Justice
(ECJ),978
and in 2000, several members of the ECJ visited the Supreme
Court Justices in Washington.979
Elsewhere, judges from European consti-
tutional courts have met every two to three years since the 1980s,980
Worldwide Common Law Judiciary Conferences have been held since
1995,981
and formal transnational organizations of judges have been estab-
lished in the Americas982
and in the Baltics.983
Less formal meetings have
also been convened by various aid agencies, NGOs, and law schools.984
Additionally, Chief Justice Rehnquist and the U.S. Judicial Conference have
created a new Committee on International Judicial Relations, the stated pur-
pose of which is to "coordinate the federal judiciary's relationship with for-
eign judiciaries and with official and unofficial agencies and organizations
interested in international judicial relations and the establishment and ex-
976
See, e.g., Jacques deLisle, Lex Americana?: United States Legal Assistance, Ameri-
can Legal Models, and Legal Change in the Post-Communist World and Beyond, 20 U. PA. J.
INT'L ECON. L. 179, 184-93 (1999) (surveying governmental and non-governmental rule of
law programs); Joseph P. Nadeau, Judges Abroad, Algeria 2001: Quest for Democracy,
JUDGES J., Summer 2001, at 38, 38-40 (describing one judge's participation in an advocacy
training program held in Algiers and sponsored by the U.S. Agency for International Devel-
opment and several foundations and NGOs).
977
Slaughter, supra note 958, at 1120.
978
Id.
979
Id.
980
Id.
981
Judges from Ten Common-Law Countries Meet in Washington for Five-Day Confer-
ence, INT'L JUD. OBSERVER, June 1997, at 1, 1; Justices, Judges from Common Law Coun-
tries Meet in Williamsburg and Washington, INT'L JUD. OBSERVER, Sept. 1995, at 1, 1.
982
See Slaughter, supra note 958, at 1120 (describing the creation and mission of the
Organization of Supreme Courts of the Americas).
983
See Hon. Rait Maruste, Estonia: Leading Central Europe in Judicial Reform, INT'L
JUD. OBSERVER, Jan. 1996, at 2, 3 ("Estonian judges have joined their colleagues in Latvia
and Lithuania to form the Association of Judges of the Baltic States . . . .").
984
See Slaughter, supra note 958, at 1121-22 (noting the international outreach efforts of
various NGOs and law schools).
524 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
pansion of the rule of law and administration of justice."985
Such efforts to
promote awareness of the judiciary around the world may help judges see
their work as part of a common transnational enterprise.
These forms of "judicial globalization" do not exhaust the ways in
which transnational norms might arise. For example, a cosmopolitan plural-
ist approach to jurisdiction might attempt to accommodate multiple com-
munity affiliations, both in cyberspace and in international law more gener-
ally, by attempting to insure that the legal decision makers asked to resolve
a conflict always include members of the various normative communities
represented in that conflict. Indeed, this is not a new idea. 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.986
Sir Edward Coke attributed this practice "to the Saxons, for whom `twelve
men versed in the law, six English and an equal number of Welsh, dispense
justice to the English and Welsh.'"987
Regional differences, however, were
not the only type of community variation recognized in the mixed-jury cus-
tom. Mixed juries were also used in disputes between Jews and Chris-
tians,988
city and country dwellers,989
and merchants and nonmerchants.990
In the United States, the custom of mixed juries was imported from England
985
Hon. Michael M. Mihm, International Judicial Relations Committee Promotes Com-
munication, Coordination, INT'L JUD. OBSERVER, Sept. 1995, at 1, 1.
986
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) (explaining the
practice of mixed juries in early England).
987
CONSTABLE, supra note 986, at 17 (quoting SIR EDWARD COKE, THE FIRST PART OF
THE INSTITUTES OF THE LAWS OF ENGLAND § 234 (1628)).
988
See id. at 18-21 (noting that half­Jewish, half-Christian juries heard suits between
Jews and non-Jews in England during the twelfth and thirteenth centuries); Ramirez, supra
note 986, at 783-84 (arguing that mixed juries originated in part from the king's desire to pro-
tect Jewish capital, which was subject to high assessments and escheatment to the crown,
rather than lose it to Christians in an unfair trial).
989
See CONSTABLE, supra note 986, at 17 (recounting an action involving a country-
dweller in twelfth century London that required that at least one of the jurors be of "the county
in which the foreigner dwells" (citation omitted)).
990
See id. at 23-25 (exploring the evolution of "mixed merchant juries" in early Eng-
land); Ramirez, supra note 986, at 784-86 (recognizing the king's regard for foreign mer-
chants, which prompted the use of mixed juries in order to promote a "perception of fairness"
to outsiders and attract their capital and goods). Indeed, mixed juries for merchants appar-
ently helped spawn the lex mercatoria on which Dinwoodie's conception builds. See
CONSTABLE, supra note 986, at 23-25 (arguing that mixed juries helped establish the legal
customs of the merchant community).
2002] GLOBALIZATION OF JURISDICTION 525
and used in disputes between settlers and indigenous people991
and in other
interjurisdictional disputes at least through the beginning of the twentieth
century.992
Karl Llewellyn's proposal that merchant experts sit as a tribunal
to hear commercial disputes relies on a similar idea that specialized com-
munities may possess relevant knowledge or background that should be
called upon in rendering just verdicts.993
And the principles underlying
mixed juries can still be found today. Indeed, the line of U.S. Supreme
Court decisions involving peremptory challenges of jurors could be seen as
responding in part to a felt imperative that jury panels reflect both racial and
gender diversity.994
More explicitly, international tribunals are generally
staffed by judges from multiple countries, and recent international efforts to
create hybrid domestic-international courts in postconflict situations place
local judges alongside international ones.995
The custom of the mixed jury
could be revived and expanded to encourage the development of norms that
cut across boundaries of sovereign territorial states.
Finally, there can be little doubt that transnational adjudicatory, quasi-
governmental, or private regulatory bodies are also a source for the devel-
opment of transnational common law norms. Although ICANN has been
subject to criticism because of the composition of its governing body and
the lack of transparency in its processes,996
the idea of a regulatory body
with authority based on activity rather than territory is an example of one
way that alternative forms of jurisdiction can be exercised and transnational
law developed. Similarly, non-governmental entities such as stock ex-
changes or bond and stock rating services may exercise significant regula-
tory authority within their substantive (non-territorial) realms. Although all
such non-governmental regulation is subject to criticism from the perspec-
991
See Katherine A. Hermes, Jurisdiction in the Colonial Northeast: Algonquian, Eng-
lish, and French Governance, 43 AM. J. LEGAL HIST. 52, 64-65 (1999) (discussing the im-
plementation of a mixed-jury system in colonial Pennsylvania, Rhode Island, and Massachu-
setts).
992
See Ramirez, supra note 986, at 790 (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").
993
See Wiseman, supra note 827, at 512-15 (describing Llewellyn's merchant-tribunal
proposal).
994
See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (forbidding prosecutors from chal-
lenging jurors solely on the basis of race); J.E.B. v. Alabama, 511 U.S. 127, 130-31 (1994)
(extending Batson to peremptory challenges based on gender).
995
For a discussion of such hybrid tribunals, see Laura Dickinson, Transitional Justice
in Afghanistan: The Promise of Mixed Tribunals, 31 DENV. J. INT'L L. & POL'Y (forthcoming
2003).
996
See supra note 147 and accompanying text (discussing criticisms of ICANN).
526 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
tive of democratic legitimacy,997
the indeterminate nature of recognition and
enforcement means that private regulation is always subject to challenge
and debate.
Thus, the articulation of norms by judges, juries, and non-governmental
entities is part of the process of creating international custom which, like lex
mercatoria, can then become integrated within state sovereign law. In this
way, globalization and online communication are processes that help to ar-
ticulate customs across nation-state boundaries. The challenge posed by a
cosmopolitan pluralist conception of jurisdiction is: Will law recognize
these and other similar developments or will it continue to divide communi-
ties formally by territory?
CONCLUSION
At nearly the same historical moment that the Peace of Westphalia es-
tablished the spatial jurisdictional orientation of the modern nation-state,
Isaac Newton also established a new way of thinking about space.998
In
place of the medieval conception of the physical world as a living organism,
Newton argued that space was "absolute, always similar and immovable."999
Both the Newtonian and the Westphalian understandings of space sur-
vived and thrived into the twentieth century. Newton's formulation of
mathematical laws for physical space was developed and refined, and it be-
came part of the accepted understanding of the universe. Similarly, the ter-
ritorial boundaries that define legal jurisdiction, though often arbitrary, have
continued to be absolutely compelling. "[A]n unwavering faith in the ne-
cessity and legitimacy of . . . [jurisdictional] boundaries would seem to be
not only a foundation of our government, but a precondition of any govern-
ment."1000
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."1001
In the past century, Albert Einstein and Stephen Hawking have chal-
lenged the Newtonian understanding of space and introduced conceptions of
997
See supra notes 386-89 and accompanying text (discussing concerns about the ac-
countability of non-state regulatory bodies and the transparency of their processes); see also
supra notes 344-53 and accompanying text (discussing similar concerns about quasi-
governmental bodies such as the WTO and WIPO).
998
This analogy is derived from CURTIN, supra note 5, at 1-2.
999
Id. at 1. See generally EDWARD NEVILLE DA COSTA ANDRADE, SIR ISAAC NEWTON
(1954) (exploring Newton's life and contribution to the development of scientific thought).
1000
Ford, supra note 470, at 851.
1001
Id.
2002] GLOBALIZATION OF JURISDICTION 527
fragmentation and indeterminacy into the Newtonian model.1002
Could we
stand to introduce those same elements into our understanding of jurisdic-
tion? 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 com-
munity 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 would almost certainly include our geographical locale and an-
other 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.
Allegiances to a physical location or a national identity are only two of the
multiple conceptions of belonging and membership that people may experi-
ence. In our daily lives, we all have multiple, shifting, overlapping affilia-
tions. 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 court-
room to resolve the particular issue in dispute. An assertion of jurisdiction,
therefore, is never simply a legal judgment, but a socially embedded, mean-
ing-producing act. Conceptions of jurisdiction become internalized and
help to shape the social construction of place and community. 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 cur-
rent jurisdictional system seems to correspond so poorly to contemporary
social conceptions of space, distance, borders, and community?
The challenges posed 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 na-
ture. These challenges, some of which were surveyed in Part I, are not nec-
essarily unanswerable, but at the very least they indicate that the reality of
1002
See, e.g., STEPHEN HAWKING, A BRIEF HISTORY OF TIME 55-63, 188-90 (20th anni-
versary ed. 1998) (discussing the uncertainty principle, which acknowledges the impossibility
of complete accuracy in quantum mechanics).
528 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 151: 311
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 social environment, 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 they 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 domi-
nant assumptions underlying legal jurisdiction. Instead of focusing on doc-
trinal questions regarding how best to "solve" the specific jurisdictional di-
lemmas that have been raised to date, I have 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 ways people
experience physical space, territorial borders, distance, and community?
Why should the nation-state be the only player on the field of legal jurisdic-
tion? Are there other forms of community affiliations that the law might
recognize?
In asking these questions, this Article has offered four central contribu-
tions. First, I have identified the social meaning of jurisdiction as an impor-
tant field of discourse, which brings together the fields of cyberspace law,
international law, civil procedure, and cultural analysis and provides a use-
ful way of understanding the effect of globalization on legal systems. Such
study affords us a better understanding of the world of experience on which
the legal world of jurisdiction is mapped and allows us to develop a richer
descriptive account of what it means for a juridical body to assert jurisdic-
tion over a controversy.
Second, I have argued that existing jurisdictional models are not prop-
erly attuned to questions of social meaning. Instead, most jurisdictional sys-
tems (both in the United States and elsewhere) are moored to geographical
territory and take for granted that territorially defined sovereign entities--
nation-states (or individual states within federal systems)--are the only pos-
sibly relevant category of community affiliation. Both of these assumptions
are problematic because, as we have seen, physical territory and geographi-
cal boundaries are not necessarily the only, or even the most appropriate,
way of defining community, and an overly narrow focus on nation-states
does not do justice to the multiple, overlapping, and often non-territorial
conceptions of community that exist in the world. Thus, 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.
Third, I have offered one such alternative approach here, which I call a
2002] GLOBALIZATION OF JURISDICTION 529
cosmopolitan pluralist conception of jurisdiction. This conception offers a
more capacious view of what constitutes a relevant jurisdictional commu-
nity--one that neither limits the jurisdictional assertion based on contact
with a geographical locality nor limits the range of possible community af-
filiations that might be relevant. My jurisdictional framework is, of course,
only one possible alternative, and there are surely others that await future
elaboration. But I have argued that any such model must, at the very least,
account for the social meaning of legal jurisdiction. Thus, it is less impor-
tant 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. Indeed, even if one were to reject a more plu-
ralist conception and retain current jurisdictional frameworks, this Article
makes clear that simply assuming that territorial boundaries and nation-state
communities are somehow the natural and inevitable bases for a system of
jurisdictional rules is not an option. Rather, any jurisdictional system must
be justified (both descriptively and normatively) as the appropriate way of
organizing space and conceiving of community affiliation in the contempo-
rary world.
Fourth, I have attempted to demonstrate that a focus on the social mean-
ing of legal jurisdiction illuminates a wide variety of doctrinal areas and that
future teaching and scholarship on jurisdiction might profitably be oriented
not along doctrinal lines such as international law, law and anthropology,
cyberlaw, or civil procedure. Rather, we must conceptualize these questions
more thematically so that we can better come to grips with the convergence
of these fields in an era of globalization.
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 con-
struct 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 territo-
rial borders or whether geographical boundaries can be reinscribed into cy-
berspace, 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 a cosmopolitan future awaits us, when
people will come to interpret themselves without using the nation-state as
their principal 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 are headed.