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BERKELEY TECHNOLOGY LAW JOURNAL

[Vol. 17:1

thousand different directions.

To paraphrase Judge Whyte: carried to its “natural extreme,”91 applica- tion of the (settled) Effects Principle is not “workable.”92 Like Judge Whyte, I “cannot see any meaningful distinction . . . between what [Digi- talbooks.com does] and what every other [website does],”93 and subjecting all websites to dozens, or perhaps hundreds, of different and possibly con- flicting legal regimes “does not make sense.”94 Like Judge Whyte, I “do[ ] not find workable”95 a theory of prescriptive jurisdiction that would hold Digitalbooks.com (and all website operators) responsible for complying, simultaneously, with the laws of all jurisdictions worldwide. Like Judge Whyte, I think that, “carried to its natural extreme,”96 the Effects Principle leads to “unreasonable liability.” 97

VII. CONSENT

If governments “deriv[e] their just powers from the consent of the governed,”98 how can Singapore, or England, legitimately exercise law- making power over Digitalbooks.com?

The Unexceptionalists are not unduly troubled by this question, be- cause they believe, apparently, that settled principles of international law have already resolved it: While consent may be a prerequisite for the le- gitimate exercise of private power, it is no longer a prerequisite for the legitimate exercise of governmental power.99 Thus, Goldsmith writes, it is

  • 91.

    Religious Tech. Ctr., 907 F. Supp. at 1369.

  • 92.

    Id. at 1372.

  • 93.

    Id. at 1373.

  • 94.

    Id. at 1372.

  • 95.

    Id.

  • 96.

    Id. at 1369.

  • 97.

    Id.

  • 98.

    THE DECLARATION OF INDEPENDENCE, pmbl. (U.S. 1776).

  • 99.

    See Stein, supra note 15, at 1176 (“Unlike the law of sovereigns, the scope of. . .

private ordering is limited to persons who have consented to the particular rules in ques- tion.”) (emphasis added); Against Cyberanarchy, supra note 2, at 1216 (concluding that because there are many “[c]yberspace activities for which ex ante consent to a governing legal regime is either infeasible or unenforceable,” these activities “are not amenable to private ordering”) (emphasis added); id. at 1215 (“[I]t remains an open question how to generate consent across cyberspace networks.”); id. at 1216 (“[P]rivate legal ordering . . . has the potential to resolve many, but not all, of the challenges posed by multijurisdic- tional cyberspace activity.”) (emphasis added); id. (“Consent-based legal orders are lim- ited by a variety of national mandatory law restrictions.”); see also Netanel, supra note 35, at 410, 492-93 (acknowledging the argument that application of foreign law to Digi- talbooks.com’s website “belies the liberal democratic principle of ‘government by con-

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