AGAINST “AGAINST CYBERANARCHY” By David G. Post†
It makes me indignant when I hear a work Blamed not because it’s crude or graceless but Only because it’s new . . . Had the Greeks hated the new the way we do, Whatever would have been able to grow to be old?1
Professor Jack Goldsmith’s Against Cyberanarchy2 has become one of the most influential articles in the cyberspace law canon. The posi- tion he sets forth—what I call “Unexceptionalism”—rests on two main premises. The first is that activity in cyberspace is “functionally identical to transnational activity mediated by other means”3 (e.g., “mail or tele- phone or smoke signal”4). The second is that, as a consequence of this functional identity, the “settled principles” and “traditional legal tools”5 of the international lawyer are fully capable of handling all jurisdictional and choice-of-law problems in cyberspace. Thus, the “choice-of-law problems implicated by cyberspace are not significantly different from those [of] non-cyberspace conflicts,”6 and we therefore need make no special provi- sion for these problems when they arise in cyberspace.
I beg, in what follows, to differ. I remain an unrepentant Excep-
© 2002 David G. Post
Professor of Law, James E. Beasley School of Law at Temple University.
DPost@vm.temple.edu. Thanks to Tom Bell, Paul Berman, Jeff Dunoff, Jack Goldsmith, Dan Hunter, David Johnson, Larry Lessig, Neil Netanel, Dawn C. Nunziato, and Eugene Volokh, as well as the participants at the November 2002 Wharton Legal Studies Collo- quium, for their comments on earlier drafts, and to Shannon Burke for research assis- tance.
1. HORACE, THE EPISTLES OF HORACE 117 (David Ferry trans., Farrar, Straus and Giroux 2001) (n.p., 14 b.c.).
2. Jack L. Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV. 1199 (1998) [hereinafter Against Cyberanarchy].
Id. at 1240.
Id. at 1200.
Id. at 1233-34.